Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Sep 10, 2015

01-2013-2490-0500 (E.E.O.C. Sep. 10, 2015)

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

,
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.

Appeal No. 0120132490

Hearing No. 470-2011-00262X

Agency No. DFAS-00030-2011

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s June 3, 2013 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., 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.
For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accounting
Technician at the Agency’s Vault and Printing Operations of the Disbursements Operations
Branch of the Operations Directorate in Indianapolis, Indiana. On September 3, 2010,
Complainant and two other employees were involved in an incident involving the printing and
issuing of 155 duplicate checks. Initially, a co-worker (CW1) was responsible for running the
checks; however, she failed to log them. The next workday, Complainant and his Team Lead
checked the log book, assumed the checks had not been printed, and re-ran and mailed out the
checks without checking with CW1 to see if she had printed that run of checks. As a result,
CW1, Complainant, and the Team Lead were responsible for approximately $213,000.00 in
duplicate checks being sent out, which resulted in more work and a costly recovery to reclaim
the checks and money.
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On November 29, 2010, Complainant’s first-level supervisor (S1) attempted to present
Complainant with the first draft of a Letter of Counseling. Complainant told S1 that he wanted
a union representative present, but began disputing the accuracy of the draft Letter of
Counseling without a union representative. Based on what Complainant said, S1 decided to
reevaluate the Letter of Counseling.

On December 10, 2010, S1 approached Complainant again to present the Letter of Counseling
charging him with negligent behavior that led to the disbursement of duplicate checks. S1
issued similar Letters of Counseling to all three employees. S1 had delayed taking any
disciplinary action regarding the duplicate checks until it was determined whether all of the
money was returned. Complainant again requested a union representative prior to S1 issuing
him the Letter of Counseling. S1 told Complainant that he could have one after the Letter of
Counseling was given to him. They discussed the Letter of Counseling, and Complainant
refused to sign it. Complainant emailed his union representative and management to complain
that he was denied union representation during the earlier meeting. Complainant’s second-
level supervisor (S2) responded that S1 gave him a Letter of Counseling and that he did not
have a right to representation for the receipt of a Letter of Counseling.

On January 24, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(African-American), disability, age (56), and in reprisal for prior protected EEO activity as
evidenced by multiple incidents including, inter alia, he was given a Letter of Counseling; he
was denied the opportunity to have union representation during a meeting with S1; S1
approached him looking disturbed, but was stopped by S2 before reaching him; S1 presented
him with the first draft of the Letter of Counseling, which Complainant factually disputed; and
S1 presented a letter to the employees in 2011 stating that employees were required to present
complaints directly to him.

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,
and the AJ held a hearing on April 11, 2013, and issued a decision on May 29, 2013.

In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. In particular, as to the Letter of Counseling, S1 testified that
Complainant was issued the letter because he had been involved in the improper issuance of
duplicate checks. Complainant argued he was not at fault for the error and that the problem
was caused by poor equipment. The AJ determined that the evidence showed that the printer
malfunction did not cause the duplication of the checks; rather, the involved employees erred
in handling the logs and had the checks printed a second time. Further, the AJ found that
Agency management treated Complainant the same as it treated the other two employees
involved in the printing of the duplicate checks. Additionally, the AJ noted that Complainant’s
concerns regarding union representation were not within the Commission’s jurisdiction and
should be addressed under the collective bargaining agreement.
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Finally, as to Complainant’s hostile work environment claim, the AJ determined that the
alleged incidents were not sufficiently severe or pervasive to establish a hostile work
environment. Further, Complainant failed to show that the incidents were based on his
protected classes. As a result, the AJ found that Complainant had not been subjected to a
hostile work environment as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ was biased and downplayed the testimony of two
witnesses. Complainant argues that he was punished for not following procedures not listed in
the standard operation procedures. Additionally, Complainant claims that he should have
never received the letter because he was performing duties as assigned. Further, Complainant
contends that Agency officials were untruthful in their testimony. Accordingly, Complainant
requests that the Commission reverse the final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

Initially, with respect to Complainant's contentions on appeal regarding the AJ’s handling of
his case, the Commission note that EEOC regulations and Commission precedent provide AJ's
with broad discretion in the conduct of hearing and related proceedings. See 29 C.F.R. §
1614.109; see also EEO MD-110, at Ch. 7. The Commission has reviewed the record and
finds no abuse of discretion by the AJ. The Commission is unable to find any evidence of
bias, or other reversible error, resulting from the manner in which the AJ managed and
adjudicated this case.
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Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510U. S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).

Here, Complainant asserted that based on his protected classes, management subjected him to a
hostile work environment. Complainant alleged several incidents of what he believed to be
discriminatory and retaliatory harassment. The Commission finds that substantial record
evidence supports the AJ's determination that Complainant has not shown that he was subjected
to conduct sufficiently severe or pervasive to create a hostile work environment.

Additionally, the Commission concurs with the AJ that Complainant failed to show that the
alleged incidents were motivated by his protected classes. For example, S1 issued
Complainant the Letter of Counseling for negligent behavior based on his role in
approximately $213,000.00 in duplicate checks being sent out. ROI, at 86; Hr’g Tr., at 220.
All three employees involved in the incident received similar Letters of Counseling. Hr’g Tr.,
at 181. Regarding Complainant’s claim that he was denied union representation during the
issuance of the Letter of Counseling, the Commission agrees with the AJ that this matter is not
within the jurisdiction of the Commission, but is a collateral attack on the negotiated grievance
process. The proper forum for Complainant to have raised his challenge regarding the denial
of union representation is within the negotiated grievance process, not the EEO complaint
process. Therefore, the Commission affirms the AJ’s dismissal of this claim. Finally, with
respect to the alleged letter directing employees to report any problems to S1, Complainant
was uncertain as to what the letter meant and did not produce the letter. Nonetheless, S1
testified that he later rescinded the letter. Hr’g Tr., at 225-26.

Furthermore, to the extent that Complainant is alleging disparate treatment with respect to his
claims, the Commission finds that substantial record evidence supports the AJ's determination
that he has not shown that the Agency's reasons for its actions were a pretext for
discrimination or reprisal. As a result, the Commission finds that Complainant has not
established that he was subjected to discrimination, reprisal, or a hostile work environment as
alleged. Substantial evidence supports the AJ's findings of fact, and the Commission discerns
no basis to disturb his conclusions of law.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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.
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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 Complainants 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 10, 2015
Date