Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jul 2, 2015

01-2013-1742-0500 (E.E.O.C. Jul. 2, 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 Logistics Agency),
Agency.

Appeal No. 0120131742

Hearing Nos. 450-2012-00028X; 450-2012-00029X

Agency Nos. DLAN110159; DLAN010075

DECISION
On April 8, 2013, Complainant filed an appeal from the Agency’s March 11, 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

. For the following reasons, the Commission AFFIRMS the
Agency’s final order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Materials Handler
at the Agency’s DLA Distribution Center, Red River Army Depot facility in Texarkana,
Texas. On May 30, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of his race (Hispanic) and national origin (Puerto Rican)
when:

1. On or about July 30, 2010, his request to be transferred to another work area was
never answered;
2. On or about October 11, 2010 to December 2010, he was assigned and required to
take more work than his non-Hispanic coworkers;
3. On or about February 23, 2011, he was moved from his assigned work area without
regard to his seniority;
4. On or about March 16, 2011, he was notified that he was being moved away from
his assigned area to a less than desirable shift; and
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5. On or about January 19, 2011, he was issued a proposed letter of reprimand
charging him with unprofessional conduct and told to resign.

Complainant also alleged that the Agency discriminated against him on the bases of his race
and in reprisal for prior protected EEO activity when: management did not select him for the
position of Security Specialist, GS-0080-11, advertised under Job Announcement Number
DLADIST-11-435120-MP.

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.
The AJ held a hearing on August 28, 2012, and issued a decision on February 20, 2013,
finding no discrimination. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected him to discrimination as
alleged.

CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the investigation was inadequate and that the AJ was
biased. Complainant contends that the Agency subjected him to a hostile work environment
and that his discrimination was part of a two-year pattern of escalating harassment. In regard
to the non-selection claim, Complainant argues that he possesses a Bachelor’s degree in
Criminal Justice and he spent time working as a federal criminal investigator. Additionally,
Complainant argues that he was the only one of the sixteen applicants already employed by the
Agency. Complainant argues these qualifications make him a clearly superior candidate
relative to the selectee.

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 a 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).

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ANALYSIS AND FINDINGS
Initially, with respect to Complainant’s contention that the AJ erred in the handling of his case,
we 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. Also, after
review of the record, we find that the EEO investigation was adequate.
Non-Selection

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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 Construction Co. 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 804 n. 14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc

., 530 U.S. 133 (2000).
Here, assuming, arguendo, that Complainant established a prima facie case of race and reprisal
discrimination, the Agency has nonetheless articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the record shows that of the sixteen candidates for the position at
issue, Complainant was not among the eight applicants that were granted a referral to the
second round of the interviews for the Security Specialist position. The three-person rating
panel rated each applicant’s resume on nine categories based on the job description. The
record shows that Complainant was not among those chosen for the next round because, while
he did have criminal investigatory experience, he did not possess experience with “physical
and personnel security.” The eventual selectee did have experience with this particular type of
security. While Complainant was qualified for the position, the AJ found that Complainant
was not “clearly more qualified” than the selectee and that the rating panel was unaware of
Complainant’s race or national origin. Therefore, we concur with the AJ’s finding that
Complainant failed to show that the Agency’s articulated reasons for not selecting him for the
position at issue were pretextual.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee’s race, color, sex,
national origin, age, disability, or religion is unlawful. See McKinney v. Dole, 765 F.2d
1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be
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regarded as discriminatory harassment unless the conduct is severe. See Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently
severe to trigger a violation of Title VII [or the Rehabilitation Act] must be determined by
looking at all the circumstances, including the frequency of the discriminatory conduct, its
severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee’s work performance. See Harris v.
Forklift Systems

, 510 U.S. 17 (1993).
After a careful review of the record, the Commission concludes that the AJ’s findings are
supported by substantial evidence. The AJ found that, as to claims (1)–(4), Complainant’s
fourth-level supervisor (S4) stated that the Agency needed Complainant in that particular area
due to workload. Additionally, S4 was unaware of any employees who were transferred to
other work areas at their request. Complainant was assigned to work zone four, which he
alleged was a form of punishment because the work load in this zone was heavier than others.
However, Complainant’s first and second level supervisors testified that Complainant was not
given more work than other employees. They also stated that this work area was not
understaffed when Complainant was present because it was assigned one sole worker both
before Complainant began working there and after Complainant was reassigned.

With respect to the moving of his work station and the denial of his requests for transfer, the
AJ correctly found that these instances were not related to any personal treatment towards
Complainant but rather they were merely indicative of larger policies at the Agency that
applied to many. The record shows that Complainant’s preferences were taken into account as
he was awarded his second-choice shift. We agree with the AJ’s finding that the incidents in
question do not reach the requisite level of severity or pervasiveness for an actionable claim;
nor is there evidence that the adverse actions are related to Complainant’s race or national
origin. Complainant does not present any evidence that demonstrates that the Agency’s
articulated reasons for its actions were mere pretext. Therefore, the AJ properly concluded
that the Complainant’s claim of alleged discrimination must fail.

As to claim (5), the record shows that Complainant was issued a Letter of Reprimand on
March 21, 2011, because he refused to process an order. Complainant contended that he was
free to clean up and leave around 2:15, but management indicated that Agency policy dictates
that employees should process an order at 2:15 if it is a “quick order.” At the hearing, one of
Complainant’s coworkers testified that, in the aforementioned instance, this was a “quick
order” that took him ten to twelve minutes to complete after Complainant refused to do so. In
another instance, Complainant refused to separate mixed material on a pallet, and this was also
cited in his Letter of Reprimand. Here, we concur with the AJ’s determination that the
reprimand issued to Complainant were appropriate in light of his refusal to complete work and
that Complainant acknowledged that he did not complete the tasks that he was assigned.
Again, Complainant does not provide sufficient evidence connecting the unwelcome conduct
with his protected status, and the AJ properly found that the conduct in question was not
sufficiently severe or pervasive as to render his claim actionable, even when considered in
totality with claims (1-4).
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In viewing the events as a whole, Complainant has not established that the incidents at issue
reach the requisite level of severity or pervasiveness for an actionable claim. Also, there is no
evidence that the adverse actions are related to Complainant’s race or national origin.
Therefore, the AJ properly concluded that the Complainant’s claim of alleged discrimination
must fail. We discern no basis to disturb the AJ’s determination, and we agree that
Complainant presented no persuasive evidence demonstrating otherwise.

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 order finding 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).
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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

Date
July 2, 2015