01A23060
05-15-2003
Donald W. Segers, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Donald W. Segers v. Defense Commissary Agency
01A23060
May 15, 2003
.
Donald W. Segers,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A23060
Agency No. 2000EANDF047
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Meat Cutter, WG-7404-7, at the agency's Fort Belvoir Commissary Meat
Department located in Fort Belvoir, Virginia. Complainant sought EEO
counseling and subsequently filed formal complaints on August 9, 2000,
November 18, 2000, February 22, 2001, March 23, 2001, April 19, 2001,
and August 24, 2001, which were subsequently consolidated, alleging that
he was discriminated against on the bases of race (African-American),
color (reddish-brown), sex (male), religion (Seventh Day Adventist),
age (D.O.B. February 20, 1951), and reprisal for prior EEO activity when:
(1) On March 21, 2000, he was not provided the proper forms to see
the doctor for an on-the-job injury he received on March 16, 2000.
After the forms were received and completed, management controverted
the claim, which resulted in him being charged Absent Without Leave
for two days, threatened with having to pay the hospital bill himself,
and had to make multiple trips to the clinic while in pain;
At 1p.m. on July 13, 2000, just prior to the end of the shift,
complainant's supervisor (S1) requested his attendance at a meeting
to discuss a performance issue and then asked him to leave the meeting
before the discussion ended, resulting in him having to stay later than
his 1:30p.m. departure;
On July 13, 2000, and continuously since, S1 required complainant to cut
pork without proper coverage and would not allow him to use a garbage
bag for coverage;
On August 16, 2000, complainant was assigned to cut pork loins by hand
instead of with a saw;
Effective September 18, 2000, complainant was suspended for seven days;
Effective March 11, 2001, complainant was suspended for fourteen days;
On an ongoing basis, complainant's performance is watched more closely
than others, and then he is threatened with performance based corrective
action for any infractions;
On an ongoing basis, complainant is not given the tools needed to do
the job (i.e., pen) and then is threatened with performance action;
On an ongoing basis, complainant is not allowed Saturdays off; and
On an ongoing basis, complainant is required to cut pork even though
his religion does not allow him to eat it.<1>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, and that the evidence in
the record does not support the claim that management discriminated
against complainant. Complainant makes no new contentions on appeal.
The agency requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). 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 Construction
Co. 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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, for the sake of argument, that complainant established a prima
facie case of discrimination on the alleged bases, we find that the
agency nevertheless articulated legitimate, nondiscriminatory reasons for
its actions. As to issue (1), S1 stated that complainant was provided
the proper forms, that he did not attempt to controvert complainant's
claim, and that he did not threaten complainant with having to pay his own
hospital bill, but may have provided advisory information. S1 also stated
that complainant was ultimately not charged AWOL because he provided the
correct documentation from the hospital. As to issue (2), S1 stated that
the purpose of the meeting was to address performance concerns. As to
issue (3), S1 explained that he discontinued use of garbage bags for all
employees, not just complainant. As to issue (4), S1 stated that several
other employees had to cut meat by hand at one time or another. As to
issue (5), S1 stated that the seven day suspension was for complainant's
offensive behavior during a meeting, and as to issue (6), the fourteen day
suspension was for complainant's failure to follow instructions regarding
completion of a productivity report. As to issue (7), S1 denied that he
ever threatened complainant or watched him more than others, but noted
that complainant's lack of performance stands out when he is observing
the employees' work. S1 further stated that he is much too busy to
watch complainant for the amount of time that complainant alleges.
As to issue (8), S1 denied that complainant is not provided a pen and
marker, and further asserted that if complainant had asked him for a
pen he would have given him one. S1 additionally stated that the only
thing he ever denied complainant was a sharpening steel, and this was
because complainant had just received one three months earlier. As to
issue (9), S1 stated that he did not approve both Fridays and Saturdays
off for complainant due to budgetary constraints and union requirements.
As to issue (10), S1 stated that he was unaware of complainant's religion,
or that his religion prohibited him from eating pork, but that as a meat
cutter, complainant is required to cut meat, which includes pork.
Despite complainant's numerous challenges to the agency's reasons,
complainant has not established, by a preponderance of the evidence,
that any of the agency's reasons are pretexts for discrimination or
retaliation. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
May 15, 2003
__________________
Date
1 We note that complainant does not allege that he ever requested any
religious accommodation.