0120130851
04-09-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120130851
Hearing No. 420-2012-00016X
Agency No. 09-39231-02026
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 20, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Lodging Manager at the Agency's Navy Exchange Service Command (NEXCOM), Pensacola Navy Lodge in Pensacola, Florida.
On May 14, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), disability, age (over 40), and in reprisal for prior EEO activity when:
1. on January 9, 2009, she was issued a 14 Calendar Day Notice of Proposed Disciplinary Action proposing her termination; and
2. on January 29, 2009, she was issued a Notice of Disciplinary Action terminating her employment effective January 31, 2009.1
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On October 10, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. On November 30, 2008, there was an incident of workplace violence at the front desk of the Navy Lodge Pensacola between a female Front Desk Clerk (female clerk) and a male Front Desk Clerk (male clerk). Complainant was the second level supervisor for both clerks.
The record reflects that the male clerk cursed at the front desk register and verbally disparaged the female clerk stating "she's a koo-koo; she's really losing it," and "makes a circular motion next to his ear and whistles like a koo-koo clock." As a result of the male clerk's comments, the female clerk became upset and began yelling at the male clerk. The male clerk then began approaching the female clerk rapidly and in her words, the female clerk stated that he was hostile and aggressive as he approached her rapidly. The female clerk forcefully pushed him.
On November 30, 2008, Complainant was returning to Pensacola from an assignment in Key West, Florida when she received a telephone call from a Lead Maintenance at the Navy Lodge Pensacola. During the relevant period Complainant was the first level supervisor for the Lead Maintenance. The Lean Maintenance informed Complainant about the incident of workplace violence involving the two clerks. Complainant called and spoke with the male clerk regarding the incident. Subsequently, Complainant called the Lead Maintenance back and asked to speak to the Front Desk supervisor, also the first level supervisor for the two clerks. The Front Desk supervisor informed Complainant that the male clerk had "gotten in [female clerk's] face, she shoved him and he shoved her."
The AJ noted that as of December 1, 2008, Complainant had not reported the November 30, 2008 incident between the two clerks pursuant to the Agency's Navy Exchange Command Instruction (NEXCOM INST). According to NEXCOM INST 5100.17, the definition of workplace violence is "any physical assault, threatening behavior, or verbal abuse occurring in the work settings." It includes but it is not limited to, disruptive behavior such as "intimidation" or "harassment."
The AJ noted in her affidavit, Complainant acknowledged she was immediately notified of the incident of workplace violence. NEXTCOM INST mandates that managers and supervisors are to expedite the reporting of incidents of actual or potential violence. Enclosure 1 to the NEXCOM INST requires that managers act without delay in advising Loss/Prevention/Safety and initiating action to minimize the likelihood of harm, and it also lists the pertinent information needed in reporting such incident. Complainant was trained in the workplace violence policy and its reporting requirement.
On December 2, 2008, Complainant received similar reports by other associates of the incident of workplace violence between the two clerks. Complainant then spoke with the male clerk. The male clerk told Complainant that he had unsuccessfully contacted the female clerk by telephone because he wanted everyone to say that "nothing happened." The male clerk told Complainant that he did not want to get into trouble and the female clerk never returned his call. Subsequently, Complainant contacted the female clerk and after their conversation, the female clerk agreed that she did not want anyone to get into trouble either.
On December 3, 2008, Complainant notified the NEXCOM Human Resources representative of a pushing incident at the Navy Lodge on November 30, 2008. On December 4, 2008, Human Resources representative directed Complainant to obtain statements from the Navy Lodge Associates regarding the November 30, 2008 incident. While the male clerk submitted a statement to Complainant stating nothing happened, the female clerk submitted a 6-page statement to Complainant discussing the entire events relating to the incident of workplace violence.
Complainant discussed again with the female clerk that the male clerk was "willing to let it go and forgive and forget." Thereafter, the female clerk submitted a second statement to Complainant which stated that nothing happened. On December 5, 2008, the District Human Resources Manager (Manager) received statements from Complainant and the male clerk that indicated that no incident of workplace violence occurred at the Navy Lodge on November 30, 2008. The Manager notified Complainant that in her possession were statements from the Lead Maintenance and Front Desk supervisor stating that an incident occurred and that Complainant and the male clerk turned in statements denying any incident of workplace violence ever occurred.
On December 5, 2008, the Manager telephoned Complainant and informed her "something was not adding up," and that she needs to write a true and complete statement. On December 8, 2008, the Manager received a statement from the female clerk which denied any incident of workplace violence ever occurred. On the same day, the Manager telephoned Complainant again and restated to her that the statements by her associates did not appear to be true and complete statements in light of the statements by the Lead Maintenance and Front Desk supervisor. Complainant asserted that the statements turned in by her, the male clerk and female clerk were true. Furthermore, the Manager advised Complainant that as the Manager of the Navy Lodge, she needed to cooperate with the investigation at which point Complainant stated that her December 4, 2008 statement was complete.
Subsequently, Complainant admitted that her December 4, 2008 statement "was not completely accurate because I knew what had happened..." On December 10, 2008, Complainant was interviewed by the Manager and the NEXCOM Loss Prevention representative (representative). During the interview, Complainant stated that she had not spoken with the Front Desk supervisor up to that time. Complainant admitted this was another false statement. Complainant also provided additional false information stating she had not spoken with the female clerk on December 2, 2008. Complainant later admitted she failed to tell the Specialist and representative that she spoke with the female clerk on December 2, 2008 and was "told everything" by the female clerk.
Upon questioning why she did not report the November 30, 2008 incident to Human Resources, until December 3, 2008, Complainant stated that it had slipped her mind. Subsequently, Complainant admitted that this was untrue because she discussed the incident with the female clerk, male clerk, Lead Maintenance and the Front Desk supervisor between November 30, 2008 and December 3, 2008.
Following the interview, Complainant met with the two clerks and went over with the male clerk what she and the female clerk had stated to the Manager and representative prior to the male clerk's interview. Complainant admitted that by going over their statements it appeared that they were conspiring to conceal the truth and that such action was inappropriate. The AJ noted that in her own words, Complainant admitted that she should have reported the incident as soon as it happened.
The AJ noted during the investigative fact-finding conference, the Labor and Employee Relations Specialist (Specialist) stated that she was the recommending official that Complainant should be terminated from Agency Employment. Specifically, the Specialist stated "I was responsible for several things in [Complainant's] case. I reviewed the evidence against [Complainant]. I determined what the past practice had been in the company. And then I also - - I reviewed the evidence to determine if it met the substantial evidence level. I reviewed the mitigating factors both for and against [Complainant]. I determined what the Navy Exchange past practice had been for similarly situated employees. And I made the - - based on all of this, I made the recommendation to terminate [Complainant]. I made that recommendation to management. And then after they made their decision to terminate [Complainant], I was responsible for ensuring that her termination was handled in accordance with all Navy Exchange rules and policies."
Further, the Specialist stated that Complainant "was charged with two things. One, she was charged with violating - - violation of a security regulation by not notifying management of the workplace violence incident. And the second thing was providing false information during the course of an investigation." The Specialist stated that one of the factors she and management took into consideration was the nature and the seriousness of the offense. The Specialist stated that she and management "found that with [Complainant's] deliberate delaying and her subsequent false statements, and her direction or influence, or allowing her subordinates to provide false statements, that this was very serious. And her doing this or permitting this resulted in a three week delay of the investigation and an escalation of the tension between the two associates."
The Director of the Navy Lodge Program, also Complainant's third level supervisor, stated that he was the deciding official to terminate Complainant because he lost confidence in her ability to act as a manager. Prior to making his decision to terminate Complainant, he consulted with Human Resources. The Director stated that after issuing Complainant the 14 day Notice of Proposed Disciplinary Action proposing her termination, she was provided the right to respond with additional information. The Director stated that he then made the decision to terminate Complainant.
The Director stated "there was a loss of trust and confidence in the ability to manage the operation. We have the safety of our guests, the safety of your employees and the safety of our physical assets to maintain. And I lost trust and confidence that [Complainant] could produce that on a routine basis from the actions that were taken and the information presented to me."
Furthermore, the Director stated "workplace violence is very important. And if we don't take care of our associates - - within the second part of that, if you provide false information during an investigation, that's also very serious. We've got compounding events here."
With regard to Complainant's retaliation claim, Complainant had engaged in prior EEO activity in February 2007 and February 2009.
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if she had, the responsible management officials articulated legitimate, non-discriminatory reasons for the contested disciplinary decision. The AJ went on to determine that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the contested disciplinary decision made. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged and/or unlawful retaliation.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
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
April 9, 2015
__________________
Date
1 On June 23, 2009, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(4) and 29 C.F.R. � 1614.302. On appeal, the Commission reversed the matter to the Agency for further processing. Complainant v. Department of the Navy, EEOC Appeal No. 0120093242 (November 30, 2010). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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