0120141620
08-12-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120141620
Hearing No. 450-2013-00094X
Agency No. AAFES 12-054
DECISION
Complainant filed an appeal from the Agency's final order dated February 28, 2014, concerning his equal employment opportunity (EEO) complaint. He alleged 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791et. seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a PB 4F Business Analyst III at the Agency's Sales Directorate of the Army and Air Force Exchange Service (AAFES) facility in Dallas, Texas.
On March 20, 2012, Complainant contacted an EEO Counselor. On May 4, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (generalized anxiety disorder and Attention Deficit Hyperactivity Disorder), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when he was separated for cause effective October 3, 2011.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on January 29, 2014 to January 30, 2014. Ten witnesses testified, including Complainant.
The pertinent record and hearing testimony reflect the following information.
Complainant has prior EEO activity and the concurring official on the subject action was aware of his prior activity.
The incident that led to the separation for cause occurred on July 26, 2011. On that date, Complainant entered the cubicle of a female coworker, while the coworker was working alone. The coworker testified that Complainant placed his hands on her shoulders, put his face next to hers and kissed her on the cheek. The coworker testified that she turned her head away so that Complainant would not kiss her on the lips. Complainant admitted that he did not ask permission to touch or kiss the coworker. He disputes that he kissed her on the cheek. He testified that he kissed the coworker on her forehead. He acknowledges that he kissed another coworker on the cheek. After Complainant kissed the coworker, the coworker's office mate returned to the cubicle. The office mate testified that he never witnessed any actions that he would consider sexually harassing of the female co-worker. At some point, Complainant took the coworker's photo. The female coworker immediately reported the incident. Complainant admitted that it was stupid to kiss the coworker, but stated that he had done it many times as a photographer with kids. He also admitted to kissing two other coworkers prior to this incident.
The female coworker also testified that Complainant sent a series of Instant Messages (IMs) to her. The IMs contained "sexual connotations, jokes, and inappropriate comments related to females." She testified that the IMs "were flirtatious in tone." She reported this to her supervisor and showed the supervisor some of the IMs that she received from Complainant. The supervisor instructed Complainant to stop.
On July 27, 2011, the Human Resources Business Partner, upon notification of the claims, conducted a management inquiry into the complaint against Complainant. That same day, the Agency placed Complainant on administrative leave pending the outcome of the inquiry. During the inquiry, Complainant admitted to kissing Complainant and other female coworkers. Record of Investigation (ROI), Exhibit F-4, at pages 150-161.
Complainant's testimony and training records indicated that he took sexual harassment training three times. His testimony during the hearing confirmed that he was aware that touching another employee without his or her consent was inappropriate.
In addition, another employee (male) testified that he witnessed an incident in which Complainant was staring at the female coworker's chest, after the coworker dropped something on the floor.
After the internal investigation, the Senior Vice President - Human Resources issued Complainant the Advance Notice of Separation for Cause, on August 31, 2011. The Final Notice of Separation was effective October 3, 2011. In response to his receipt of the Notice, Complainant acknowledged that he kissed a coworker, but he denied sending inappropriate instant messages to her. After considering Complainant's written and oral replies, the Agency determined that removal was appropriate. Report of Investigation, Exhibit F1 at 65-67.
The Agency terminated Complainant for cause, effective October 3, 2011, following an internal inquiry after Complainant kissed a fellow coworker. The deciding official on the separation was the Senior Vice President - Human Resources (female, no identified disabilities) (S1). The deciding official was unaware of his prior EEO activity at the time Complainant was issued the Advance Notice of Separation for Cause. Complainant also named as a responsible management official the Vice President, Sales Directorate (male, no known disabilities) (S2). S2 is Complainant's second level supervisor and was aware of Complainant's prior EEO activity.
S1 did not become aware of his medical impairments until Complainant notified S1 of his impairments in his written reply to the Advance Notice of Separation for Cause. EEO Transcript, Volume 2, pages 304-305. Although Complainant alleges that he suffers from certain medical conditions, he testified that he was able to perform all of the essential functions of his position. He did not request reasonable accommodation and was not under any medical restrictions.
The AJ initially found that Complainant made untimely EEO counselor contact. The AJ found that Complainant was provided notice on October 3, 2011 of the proposed separation, but Complainant did not contact an EEO Counselor until March 20, 2012, which was more than five months after his termination. She also found that he failed to provide any argument or evidence to extend the time limit. Although she found his claim was untimely, the AJ addressed the merits of the claims.
The AJ found that Complaint failed to establish a prima facie case of sex, disability or retaliation discrimination. The AJ stated that Complainant failed to identify any similarly situated person who was not similarly investigated or terminated after a similar sexual harassment allegation was made. The AJ reasoned that "Complainant admits that he kissed a coworker." The AJ found that he failed to present any evidence that he ever requested a reasonable accommodation. The AJ also referenced Complainant's admission that "he did not need a reasonable accommodation and could perform the essential functions of his position."
With regard to the alleged claim of retaliation, the AJ found that the alleged responsible management official denied any knowledge of Complainant's prior EEO activity. The AJ found that the first time that Complainant mentioned his prior EEO activity to the named management official was in his response to the Advanced Notice of Separation. The AJ also noted that the named official in this matter was not named as a responsible management official in his prior EEO activity. The female coworker testified that no one had approached or asked her to file a complaint against Complainant and there were no promises of favors or promotion if she did. Hearing Transcript, page 641.
Next, the AJ found that, assuming that Complainant established a prima facie on all of his disparate treatment claims, the Agency articulated a legitimate, nondiscriminatory reason for its actions (inappropriate kissing of a coworker). The AJ found the testimony of the woman who had been touched "to be completely credible." The AJ also found credible the testimony of the management officials, who confirmed that the person who had been touched reported the incident immediately. The AJ stated, "Although Complainant seems to be of the belief that his medical conditions excuse his behavior in the workplace, that is not the case and the Agency's termination of Complainant for his unwanted kissing of a coworker in the workplace was not pretext for discrimination." The AJ found that "Complainant has not shown by a preponderance of the evidence, as it is Complainant's burden to do, that Respondent's legitimate nondiscriminatory reason was a pretext for discrimination."
The Agency subsequently issued a final order adopting the AJ's decision. This appeal followed.
ANALYSIS
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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
On appeal, Complainant asserts that the AJ "did not do sufficient research regarding this complaint to make a decision on behalf of the complainant, as she [the AJ] did not take into account the inconsistent testimony, and failed to recognize that the complainant had never been officially warned regarding any type of sexual harassment." Complainant also asserts that the AJ erred with regard to the AJ's finding on retaliation because Complainant states that the second level supervisor was aware of his prior EEO activity. Complainant points to his "second disciplinary action" as evidence that his supervisor was aware. He states that management's actions were "a product of a retaliatory action propagated by [the named second-level management official] in retaliation for Complainant fighting the second disciplinary action."
In response, the Agency maintains that Complainant failed to put forth any evidence to show that AJ's post-hearing factual determinations should be overturned. The Agency maintains that Complainant acknowledge that kissing coworkers was inappropriate and had been put on notice through the trainings and told by other female employees that his conduct was inappropriate. The Agency argues that Complainant failed to show that his second level supervisor (S2) acted to cause the deciding official (S1) to terminate Complainant's employment.
Disparate Treatment
Section 717 of Title VII requires that federal agencies make all personnel actions free of discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on sex").
To prevail in a Title VII disparate treatment claim such as this, Complainant must 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). We find that the record supports the AJ's determination that Complainant did not identify any similarly situated individuals outside of his protected groups who were treated differently for similar alleged conduct.
Section 501 of the Rehabilitation Act bans discrimination against individuals with a disability. In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by complainant's disability, we apply the burden-shifting method of proof. Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
In this case, Complainant does not claim that he was or was considered to be an individual with a disability. For purposes of our analysis, however, we will assume that Complainant is a qualified individual with a disability.
The prima facie inquiry may be dispensed with in this case, however, since the deciding official averred that management decided to separate Complainant for cause, because of his inappropriate kissing of a coworker. Consequently, we find that 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. 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 Products, 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 find that the record contains substantial evidence that supports the AJ's finding. Complainant did not provide evidence to show that the Agency's reasons were a pretext for discrimination. Instead, Complainant cites variations of the accounts of what occurred in the statements of the witnesses. As an example, Complainant conceded that he kissed the female coworker, but disputes that he kissed her on the cheek. Those variations are not material to the underlying issue of whether the Agency discriminated against Complainant. In this case, Complainant admitted that he kissed coworkers, without their consent and he was aware that such conduct was inappropriate. Further, the AJ considered the evidence and made credibility determinations that are entitled to due deference.
Reasonable Accommodation
Consequently, the record supports the AJ's finding that the Agency did not deny Complainant any reasonable accommodation. There was no evidence that Complainant ever requested a reasonable accommodation of any type prior to his receiving the Advance Notice of Separation for Cause.
Retaliation
In addition, we find that the AJ's determination is supported by the record with regard to the claim of retaliation. The alleged responsible management official (S1) denied any knowledge of the Complainant's prior EEO activity. The deciding official first learned of his prior EEO activity when Complainant responded to the Advanced Notice of Separation. The deciding official was not the same management official named in Complainant's prior suspension.
There is record evidence from the coworker who lodged the harassment claim against Complainant that no one had approached her in an effort to get her to file the complaint. The AJ stated that she found the testimony to be credible. Further, the AJ made a credibility determination that the claims were not substantiated by a preponderance of the record. The AJ found that Complainant had not shown by a preponderance of the evidence that the Agency's legitimate nondiscriminatory reason was a pretext for discrimination. We find that decision is supported by the record.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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
August 12, 2014
__________________
Date
2
0120141620
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141620