0120122647
10-12-2012
Renardo D. Robertson, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Renardo D. Robertson,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120122647
Agency No. DeCA-00154-2011
DECISION
Complainant timely filed an appeal from the Agency's final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant did not establish that he was subjected to discrimination and a hostile work environment, culminating in a constructive discharge, on the bases on race and sex.
BACKGROUND
At the time of events giving rise to this complaint, Complainant (Black, male) worked as a Commissary Contract Monitor, Quality Assurance Evaluator (QAE), GS-06, at the Agency's Smokey Point Commissary in Marysville, Washington. Report of Investigation (ROI), at 1. Complainant was appointed to his position on November 8, 2010, under a probationary period. Id. The position description for the QAE potion noted that Complainant would be responsible for monitoring commissary contractor performance for stocking, custodial, receiving, storage, and service contracts. Id. Complainant was the only QAE appointed to the Agency's Smokey Point Commissary at that time. Id. at 368. Management appointed another QAE (White, male) to work as Complainant's alternate later, on February 28, 2011.
On February 8, 2011, Complainant received a 90-day Progress Review signed by his first-level supervisor, the Store Administrator. (Black, female). Id. at 93 The Progress Review noted, "We are excited to have [Complainant] on board and a part of our team. He brings relevant work experience, intellect, organization skills, and sound work ethics to the team." Id. Thereafter, on February 9, 2011, Complainant fell off a ladder while working and was administered first-aid. Id. at 98. Management did not complete an accident report for Complainant after he fell from the ladder. Id. at 352-53.
On March 23, 2011, the Store Administrator sent Complainant an e-mail entitled "Cooperative Working Relationship" regarding Complainant's duties and responsibilities as a QAE. Id. at 337-38. The e-mail ended with the Store Administrator thanking Complainant for the job he was doing. Id. at 338. The next day, on March 24, 2011, Complainant responded with an e-mail entitled, "Resignation." Id. at 336-37. Therein, Complainant noted, among other things, that it had been a very stressful work environment and that management had not been supporting Agency policies. Id. Complainant also noted that he felt management discriminated against him because of his military background, but did not list race or sex as a reason for discrimination. Id. Complainant further noted in the e-mail that he was formally submitting his resignation effective at 0700 hours on March 23, 2011. Id. at 337. Later that day, on March 24, 2011, the Store Administrator telephoned Complainant, asking him to return his identification badge and keys, and said there was no need for him to give two-weeks' notice. Id. at 335. On March 25, 2011, Complainant also submitted a formal letter of resignation to management. Id. at 101.
On July 26, 2011, Complainant filed an EEO complaint, amended on September 1, 2011, alleging that the Agency discriminated against him on the bases of race and sex1 when:
1. the Store Administrator telephoned him directing him not to worry about submitting a two-week notice, and instructed him to bring in his keys and identification card, and sign the SF-50;
2. his discharge was made to look like a resignation;
3. his position description and performance plan was not updated to reflect that the government furnished equipment (GFE) responsibility was taken out of the Quality Assurance Evaluator (QAE) position for which he was hired, and was not in accordance with the Agency's Handbook 70-7, Contract Monitor Reference Manual;
4. he was not allowed to perform the QAE duties for which he was hired, and when he questioned it, he was reassigned to work for two separate managers within two months performing other duties as assigned;
5. he was denied support from upper management, training, mentoring, and access to directly speak to the contract officer for interpretation of the contract 70-7, causing him to give his two-week notice to resign out of frustration;
6. the Store Director failed to forward his Agency Form 30-301, injuries and accident report, to the regional office within 7 days, and within the 10-day requirement by the Department of Labor;
7. his second-level supervisor failed to record his injury on the Occupational Safety and Health Administration (OSHA) Form 300 for medical care he received beyond first-aid, and failed to complete the proper documentation after he reported his injury when he returned to work, preventing an investigation to show how the Agency kept the OSHA-authorized ladder blocked in the corner of the warehouse; and
8. the Store Administrator directed him to complete a separate time and task sheet each night without directing the other Caucasian QAE alterative to do the same.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, with respect to claims 1 and 2, the Agency noted that Complainant voluntarily submitted his resignation by e-mail and letter. The Agency noted that Complainant was not forced to resign. Regarding claims 3 and 4, the Agency noted that the GFE responsibilities were not added to Complainant's performance plan because the Agency had a full-time supply technician who was trained and responsible for the store's equipment. The Agency further noted that Complainant worked with the grocery store manager for training purposes. The Agency also noted that management requested but never received Complainant's QAE letter of authority for contracting. The Agency noted that Complainant could not sign contract paperwork without the letter of authority. With regard to claim 5, the Agency noted that Complainant was sent to Whidbey Island Commissary to work with another QAE for two weeks. The Agency noted that Complainant attended a food safety course and was scheduled for QAE/Contract Monitoring Training in May 2011. Regarding claims 6 and 7, the Agency noted that management was not required to record his injury because Complainant only received first-aid from his fall. The Agency noted that Complainant did not provide any documentation of a significant injury. Lastly, with regard to claim 8, the Agency noted that Complainant was required to complete a time and task sheet so that management could review Complainant's nightly routine and prioritize the functions of Complainant's duties. The Agency noted that the alternate QAE was hired on February 28, 2011, and in training, and therefore was not required to complete a time and task sheet at that time. The Agency found that Complainant failed to establish that its legitimate, nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant, in pertinent part, contends that the EEO Counselor he contacted on March 24, 2011, failed to properly investigate his discrimination claims. Complainant contends that this EEO Counselor was replaced due to a potential conflict of interest. Complainant contends that a racially charged note was posted in the men's restroom, which degraded the president, African-Americans, and women. Complainant contends that he was subjected to a hostile work environment because he was not allowed to have contact with the contracting officer. Complainant contends that he was required to perform duties outside of his position description, and was assigned to perform tasks with little or no guidance. Complainant contends that he had no choice but to resign, which constituted a constructive discharge. Complainant contends that he requested to be reinstated, but was falsely told that there were no positions available. Complainant contends that he suffered a laceration to his head when he fell off the unsafe ladder. Complainant contends that management failed to properly document and report his injury. Complainant contends that the Agency failed to conduct an impartial and proper investigation of his claims.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, because the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks. 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on race and sex, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With respect to claims 1 and 2, management explained that Complainant voluntarily submitted his resignation by e-mail and letter. ROI, at 346. Regarding claims 3 and 4, management explained that the GFE responsibilities were not added to Complainant's performance plan because the Agency had a full-time supply technician who was trained and responsible for the store's equipment. Id. at 351. Management further explained that Complainant worked with the grocery store manager for training purposes. Id. Management also explained that management requested but never received Complainant's QAE letter of authority for contracting. Id. Management explained that Complainant could not sign contract paperwork without the letter of authority. Id. With regard to claim 5, management explained that Complainant was sent to Whidbey Island Commissary to work with another QAE for two weeks. Id. at 355. Management explained that Complainant attended a food safety course and was scheduled for QAE/Contract Monitoring Training in May 2011. Id. at 348. Regarding claims 6 and 7, management explained that they were not required to record and report his injury because Complainant only received first-aid from his fall. Management explained that Complainant did not provide any documentation of a significant injury. Id. at 353. With regard to claim 8, management explained that Complainant was required to complete a time and task sheet, so that they could review Complainant's nightly routine and prioritize the functions of Complainant's duties. Id. at 347. Management explained that the alternate QAE was hired on February 28, 2011, and in training, and therefore was not required to complete a time and task sheet at that time. Id.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant contends that he was required to perform duties outside of his position description, and was assigned to perform tasks with little or no guidance. Complainant contends that a racially charged noted was posted in the men's restroom, which degraded African-Americans and women. Complainant contends that management failed to properly document and report his injury. Complainant also contends that his discharge was made to look like a resignation.
Notwithstanding Complainant's contentions, there is no dispute that Complainant submitted an e-mail and a letter to Agency management resigning from his position. We find that it was reasonable for the Store Administrator to instruct Complainant to bring in his keys and identification badge and sign the SF-50 without giving a two-week notice. With regard to claims 3, 4, and 5, we can find no evidence here that management's actions were motivated by Complainant's race or sex. We also can find no evidence that management's actions with regard to documenting and reporting Complainant's injury was motivated by Complainant's race or sex.2 Regarding claim 8, we find that Complainant has failed to show that he was treated less favorably than a similarly-situated employee under similar circumstances. Therefore, we find that Complainant has failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination, or were motivated by discriminatory animus.
Hostile Work Environment
To the extent that Complainant also alleged that he was subjected to a hostile work environment, we find that, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded based on our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Consequently, we find that the Agency properly found that Complainant failed to prove that the Agency subjected her to unlawful discrimination or harassment because of his race and sex.
Constructive Discharge
Finally, to the extent that Complainant alleges that he was forced to resign because of the Agency's discrimination, the Commission notes that the central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As stated above, Complainant has not shown that the Agency's actions were motivated by discriminatory animus. Thus, the Commission finds that Complainant cannot establish the necessary elements to prove constructive discharge.
We find that the record is devoid of any persuasive evidence that discrimination was a factor in any of the Agency's actions. At all times, the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden. We note that as Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Further, we note that, under 29 C.F.R. � 1614, a hearing is "an adjudicatory proceeding that completes the process of developing a full and appropriate record." Hence, if Complainant felt the investigative record was inadequate, he had the right to request a hearing before an Administrative Judge. In this instance, Complainant did not. We also note that Complainant elected not to participate in the Agency's investigation.
With regard to Complainant's claim concerning the actions of the EEO counselor and the processing of his complaint, a claim of dissatisfaction with the processing of a pending complaint does not state an independent claim by itself. Rather, Complainant has the burden of establishing before the decision-maker in the underlying complaint that the alleged improper processing had a "material effect" on the processing of that complaint. See EEO MD-110 at 5-23, 5-25 to 5-26. We have considered the record on this matter and have determined that Complainant has not met his burden on this issue. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision and its finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 12, 2012
Date
1 The Agency does not address sex as a basis in its final decision; however, the record reflects that Complainant alleges that the Agency subjected him to discrimination based on sex in addition to race.
2 The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise his challenges to actions which concern an Office of Workers' Compensation Programs (OWCP) claim and on-the-job injury is with the Department of Labor within the OWCP process.
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0120122647
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122647