Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 7, 2013

0120120398 (E.E.O.C. Mar. 7, 2013)

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

,
Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120120398

Agency No. ARCELA10JUL03517

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
October 27, 2011 final Agency decision (FAD) 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Civil Engineer
(Structural) at the Agency’s Corps of Engineers facility in Los Angeles, California.
Complainant worked in the Structural Engineering Section of the Engineering Division. On
April 14, 2010, Complainant entered the Regulatory Division work area and approached a co-
worker who did not work in his division (CW1). CW1 did not know Complainant, but
Complainant asked her to help him find out the identity of a woman pictured in an Agency
publication. CW1 told Complainant that she did not know the woman, and Complainant asked
her to work with another co-worker (CW2) in finding out more information about her. CW1
emailed CW2 asking about the woman pictured in the article for Complainant. CW2
responded that she did not know the name or identity of the woman in the article.

On April 15, 2010, Complainant returned to the Regulatory Division work area and asked both
CW1 and CW2 several confusing questions such as “Are you mine?” and “Are you in or out?”
They contacted their supervisor, the Chief of the Regulatory Division (Chief), and he
approached Complainant while he was speaking with CW1. The Chief identified himself and
asked Complainant if he could help him with anything. Complainant said no and eventually
left the area. The Chief then reported the incidents to Complainant’s supervisor (S1).

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On April 19, 2010, S1 issued Complainant a memorandum instructing him not to enter the
Regulatory Division work area and not to interact with that division’s staff. S1 noted that
Complainant’s failure to follow his instructions could result in disciplinary action.
Complainant refused to sign the memorandum. Complainant ignored S1’s instructions and
entered the Regulatory Division that same day and requested to speak with the Chief. They
went into an office, and Complainant asked the Chief if CW1 and CW2 would be filing
complaints against him. Complainant stated that he would make complaints against them and
that “if they want to play, that’s a two-way street.” The Chief again reported the incident to
S1. On May 28, 2010, S1 issued Complainant a Letter of Reprimand for failure to follow
instructions based on Complainant disobeying his instruction to stay away from the Regulatory
Division.

On August 13, 2010, S1 instructed Complainant to work overtime over the weekend to finish
structural drawings for a project. Complainant submitted an overtime request slip for August
14 and 15, 2010, and it was approved by his second-level supervisor (S2) who granted
Complainant after-hours access to the facility. On August 16, 2010, S1 reviewed the sign-in
book where employees were required to document their hours and discovered that no one had
signed in over the weekend. In addition, S1 reviewed the structural drawings and found that
Complainant had not completed any of the work.

On August 30, 2010, S1 issued Complainant a Notice of Proposed Suspension for five days for
failure to follow his instructions to work mandatory overtime. Subsequently, S2 upheld the
suspension and issued Complainant a Notice of Decision suspending him for five days for
failure to follow S1’s instructions.

On August 26, 2010 (and later amended), Complainant filed a formal complaint alleging that
the Agency discriminated against him on the bases of race (Asian), national origin (Vietnam),
color, and in reprisal for prior protected EEO activity when he received an Official Letter of
Reprimand for failure to follow instructions and, subsequently, a Notice of Decision to
Suspend for failure to follow instructions.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ).1

In accordance with Complainant's request, the Agency issued a
FAD pursuant to 29 C.F.R. § 1614.110(b).

1 The Commission notes that the investigation included a fact-finding conference which
Complainant declined to attend. The investigator noted before the conference that Complainant
was informed of the time and location of the fact-finding conference and had earlier indicated
that he would attend. Instead, Complainant later submitted an interrogatory on March 7, 2011,
and a follow-up on March 11, 2011.
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In the FAD, the Agency initially determined that Complainant failed to establish a prima facie
case of reprisal as the instant complaint was Complainant’s only prior protected activity. The
Agency assumed arguendo that Complainant had established a prima facie case of
discrimination on the remaining bases and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, Complainant was issued the May 28,
2010 Letter of Reprimand after he failed to follow S1’s instructions to refrain from entering
the Regulatory Division work area and from interacting with the Regulatory staff.
Complainant instead, entered the Regulatory Division and approached the Chief of the
Regulatory Division, requested a private conversation, and among other things, stated that “if
they can play, I can play” and “I’m here to explain the rules of engagement.” Additionally,
Complainant was issued the Notice of Decision, Five-Day Suspension because he failed to
follow S1’s instructions to work mandatory overtime on August 14 and 15, 2010.

The Agency concluded that Complainant failed to establish that management’s reasons were
pretextual. As a result, the Agency found that Complainant had not been discriminated against
as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that everyone involved was given full immunity to harass,
stress, and discriminate against him. Further, Complainant argues that the evidence used in
issuing the Letter of Reprimand was fabricated. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

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). 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). The prima facie
inquiry may be dispensed with in this case, however, since 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). 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., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

In the instant case, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, S1 affirmed that he had received
complaints that Complainant was annoying some staff members in the Regulatory Division and
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he gave Complainant an order to stay out of the area and refrain from interacting with the
staff. ROI, Fact-Finding Conference (FFC), at 14. Complainant disobeyed S1’s instructions
and went back into the Regulatory Division work area to discuss the matter with the Chief, and
the Chief notified S1. Id. at 82. As a result, S1 issued Complainant the Letter of Reprimand
for disobeying his instructions. Regarding the suspension, S1 confirmed that Complainant was
directed to work overtime after he did not complete a project in the allotted time. Id. at 27.
Complainant failed to show up for either day of the assigned overtime and did not complete the
work. Based on Complainant’s prior discipline and the seriousness of the offense, S2
subsequently issued Complainant the Notice of Decision of Suspension for five days. ROI, at
135.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256.

The Commission finds that the record is devoid of any evidence that Complainant's protected
classes were factors in any of the Agency’s actions. At all times, the ultimate burden remains
with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that the Agency acted on the basis of discriminatory or
retaliatory animus. Complainant has failed to carry this burden. Thus, based on the evidence
presented herein, the Commission concurs with the Agency that Complainant failed to prove
management's reasons for its actions were pretext for unlawful discrimination or reprisal.

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 Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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:

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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 (Nov. 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
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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

March 7, 2013
Date