Brian S.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

0120181488 (E.E.O.C. Sep. 20, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Brian S.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120181488

Hearing No. 430-2017-00049X

Agency No. ARBRAGG16MAY02073

DECISION

On March 24, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 27, 2018 final order 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. Our review is de novo. For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Security Guard,
GS-0085-06, at the Agency’s work facility at Fort Bragg, North Carolina.

On June 21, 2016 (and later amended), Complainant filed an EEO complaint wherein he claimed
that the Agency discriminated against him in reprisal for his prior protected EEO activity when:

1. On May 9, 2016, the Captain (Complainant’s Second-level Supervisor) placed him on
administrative leave and suspended him from the Individual Reliability Program (IRP).

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Complainant claimed that he was denied due process and that false allegations were
made against him;

2. On July 11, 2016, he was issued a 14-Day Suspension; and

3. On July 8, 2016, he learned that the Captain charged him 32 hours of annual leave
while he was on administrative leave pending disciplinary action.2

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but
subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). In the decision, the Agency determined that Complainant failed to prove
that it subjected him to discrimination as alleged.

The Captain stated that he was informed that Complainant assaulted a coworker at the worksite.
According to the Captain, he immediately went to the worksite and asked witnesses to write
statements. The Captain asserted that five witnesses told him what occurred and all five stated
that Complainant communicated a threat to the coworker and then assaulted him. The Captain
stated that three of the individuals had to get between Complainant and the coworker to stop the
assault from continuing. The Captain explained that he did not talk to Complainant that night
because Complainant had left the workplace by the time he arrived.

The Captain asserted that he decided to suspend Complainant from the IRP in light of the
witnesses’ statements based on his role as the certifying official. According to the Captain, it was
his duty to perform due diligence to protect the guard force from a potential insider threat. The
Captain noted that at the time of the incident, Complainant was armed with a pistol, an expandable
baton, and a can of pepper spray. The Captain further stated that he suspended Complainant’s
security clearance after learning that Complainant was listed on the Military Police Blotter for
charges of communicating a threat and assault. Maintenance of a secret security clearance is a
condition of employment for Complainant’s position. The Captain explained that without the
security clearance, Complainant was no longer allowed on the facilities that the guard force
secures. Since Complainant was unable to perform his duties and there were no administrative
tasks to which he could be assigned, the Captain placed Complainant on administrative leave.

With respect to Complainant’s claim that the coworker should also have been suspended from the
IRP, the Captain asserted that the coworker was the victim. The Captain observed that the

2 The Agency initially dismissed Complainant’s claim that he was issued a proposed suspension
pursuant to 29 C.F.R. § 1614.107(a)(5). The complaint was later amended to include the
suspension when it was officially issued. In addition, the Agency dismissed two additional claims
related to the investigation of the incident with the co-worker pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim. Complainant did not challenge the dismissal of these
claims on appeal; therefore, we will not address them further herein.
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coworker complied with IRP requirements by immediately calling his lieutenant to report the
incident with Complainant. In addition, Complainant also had a self-reporting requirement under
the IRP. The Supervisory Security Guard (Complainant’s first-level supervisor) stated that he
proposed suspending Complainant from duty after he received a memorandum from the Captain
documenting Complainant’s battery against his coworker. The Supervisory Security Guard noted
that a 14-day suspension was the minimum for battery. The Deputy Director was the deciding
official for the 14-day suspension. He stated that security guards are held to a high level of
conduct. The Human Resources Specialist Labor/Management Employee Relations stated that a
regulation justified suspension from the IRP due to the requirement of Complainant’s position that
he carry a firearm to perform his security guard duties.

Complainant denied any physical contact with the coworker. Complainant asserted that he and his
coworker engaged in an argument concerning food in the refrigerator that the coworker threw
away. Complainant argued that he was suspended without due process as management suspended
him before talking to him. According to Complainant, the three statements utilized to justify
management’s actions were coerced.

Complainant stated that during the time he was on administrative leave, he was charged for 32
hours of annual leave, and was then placed back on administrative leave. Complainant had
previously received approval to take annual leave during part of the time he was on administrative
leave. Complainant explained that the reason he did not cancel his annual leave was because he
thought the administrative leave superseded the annual leave. Complainant stated that
management should have contacted him to confirm that he wished his previously approved annual
leave to remain in effect during the period he was in an administrative leave status.

On March 22, 2016, the Captain approved Complainant’s annual leave request for the period of
June 14, 2016 through June 18, 2016. The Human Resources Specialist stated that he informed
management that if Complainant did not cancel his approved annual leave, he would be on
protected leave, and would return to administrative leave once the annual leave was completed.
The Captain asserted that management did not have to ask an employee after they have submitted
a leave request and had it approved whether they want to continue to take annual leave when they
could instead be on administrative leave.

In the Agency’s final decision, the Agency determined that management articulated legitimate,
non-retaliatory reasons for its actions. Management stated that Complainant engaged in an
altercation with his coworker that resulted in Complainant communicating a threat and pushing
the coworker. The Agency observed that the Captain acted based on several witness statements in
issuing administrative action to ensure the safety of the guard force. Management explained that
since Complainant could not perform his job or any other while his security clearance/IRP were
suspended, it determined that he should be placed in an administrative leave status.

Complainant contended that management missed the 15-day window for presenting him with the
Notice of Proposed Suspension, and that it backdated the Notice to comply with the timeline. The
Agency denied that management has a requirement to issue a Proposed Notice of Suspension
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within a specific period of time. The Agency determined that Complainant confused the amount
of time he has to respond to the Notice of Proposed Suspension with the unlimited time
management has to conduct an investigation of alleged misconduct prior to initiating disciplinary
action.

The Agency determined that when management realized that annual leave was in effect for
Complainant while he was on administrative leave, it consulted with Human Resources to
determine the proper course of action. According to the Agency, management was not advised to
contact Complainant to discuss the matter. The Agency stated that Human Resources advised that
if Complainant did not cancel his approved annual leave, he should be permitted to take it and be
charged for it.

The Agency concluded that Complainant failed to demonstrate that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Captain intended to retaliate against him for a prior EEO
complaint he filed against the Captain three months before the incident with his coworker.
Complainant states that he is not aware of any Caucasian employee receiving any disciplinary
action. According to Complainant, the witnesses who gave statements are all under the coworker’s
supervision. Complainant argues that based on the table of penalties for various offenses, he and
his coworker should have received a written reprimand to a five-day suspension for creating a
disturbance. Complainant indicates that he was not armed at the time of the altercation and that
the Captain and the coworker lied in saying he was armed. Accordingly, Complainant requests
that the Commission reverse the final decision.

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. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that: (1) he
engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3)
subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between
his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).

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The prima facie inquiry may be dispensed with where the Agency 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.
13, 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
Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of
the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

We shall assume arguendo that Complainant set forth a prima facie case of reprisal with respect to
each of the incidents at issue. The Agency explained that Complainant was placed on
administrative leave and suspended from the IRP based on his involvement in an altercation with
his coworker that involved Complainant communicating a threat and pushing the coworker. The
Agency observed that the Captain conducted an investigation where he elicited several witness
statements and that based on such statements he subsequently issued Complainant administrative
action to ensure the safety of the guard force. The Agency explained that since Complainant could
not perform his job or any other duties while his security clearance/IRP were suspended, it
determined that he should be placed in an administrative leave status. The subsequent suspension
that Complainant received reflected the fact that a 14-day suspension was the minimum for battery.
With regard to Complainant being charged 32 hours of annual leave while on administrative leave,
the Agency stated that it was Complainant’s responsibility to contact them if he wanted to rescind
the annual leave that had previously been approved. We find that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions.

Complainant disputes the Agency’s description of the altercation, casts blame upon his coworker
and argues that the witnesses’ statements were coerced and reflect that the witnesses were under
the coworker’s supervision. We are not persuaded that these contentions have merit. Complainant
has not presented sufficient evidence that the witnesses’ statements were coerced or in any way
biased. Even assuming that the coworker may have been at fault when he took food from the
refrigerator and threw out another employee’s food, the ensuing argument between Complainant
and the coworker escalated out of control and it was Complainant’s actions that necessitated other
employees stepping between them. Complainant maintains that he was denied due process as the
Captain did not speak to him prior to suspending him from the IRP and placing him on
administrative leave. We find no evidence that the Agency was under an obligation to seek
Complainant’s input before taking action. The record indicates that the Captain acted
appropriately by promptly investigating the incident, obtaining witnesses’ statements and then in
light of the consistency of those statements issuing Complainant a suspension from the IRP, and
placing him on administrative leave. Complainant had left the facility by the time the Captain
arrived, and the nature of the incident warranted that prompt action be taken to ensure the safety
of the security guard force. In terms of Complainant being charged 32 hours of annual leave while
on administrative leave, Complainant contends that the Agency should have contacted him to
confirm that he wished his previously approved annual leave to remain in effect during the period
he was in an administrative leave status. We discern no evidence that the Agency was under any
obligation to initiate contact with Complainant concerning this issue.
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We find that Complainant has failed to establish that the Agency’s stated reasons for the actions
at issue were pretext intended to mask retaliatory motivation. As a result, we find that Complainant
was not subjected to reprisal as alleged.

CONCLUSION

The Agency’s determination that no reprisal occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 20, 2019
Date