Emile L. Hurd, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionMay 17, 2007
0120071689 (E.E.O.C. May. 17, 2007)

0120071689

05-17-2007

Emile L. Hurd, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Emile L. Hurd,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Commissary Agency),

Agency.

Appeal No. 0120071689

Agency Nos. DECWP20060012

DECWP20060016

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning the two captioned EEO complaints that claimed 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 Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �

1614.405(a).

During the relevant time, complainant was employed as a Grocery Manager,

GS-1144-10, at the agency's March Air Reserve Base (ARB) Commissary

in Riverside California. Complainant filed the two captioned formal

complaints on February 6, 2006 and June 26, 2006, respectively.

Agency No. DECWP20060012

In Agency No. DECWP20060012 (hereinafter referred to as "Complaint 1"),

complainant initiated EEO Counselor contact on January 3, 2006. Informal

efforts to resolve his concerns were unsuccessful. On February 6, 2006,

complainant filed a formal EEO complaint. Therein, complainant claimed

that he was the victim of unlawful employment discrimination on the bases

of disability (lower back) and in reprisal for prior EEO activity when:

(a) on December 4, 2005, he was suspended from work without pay for

alleged failure to follow work instructions and procedures;

(b) from December 22, 2005 until January 18, 2006, he had been barraged

with harassing e-mails from a named supervisor implying that he had

failed to follow instructions and/or complete job assignments, and he

had been harassed with weekly tasking that would lead someone to believe

he had to be constantly reminded of what his job entails;

(c) on August 26, 2005, his leave and earning statement identified that

he was charged 16 hours absence without official leave (AWOL);

(d) on October 4, 2005, he was harassed in the form of a clarification

request memo, stating that he was being carried in a sick leave status

unless he provided medical documentation supporting his requested absence

to care for his mother; and

(e) on October 21, 2005, he was advised that the medical documents he

provided were insufficient.

On March 21, 2006, the agency issued a partial dismissal. The agency

accepted for investigation claim (a). The agency dismissed claim

(b) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a

claim. The agency dismissed claims (c) - (e) pursuant to 29 C.F.R. �

1614.107(a)(2) on the grounds of untimely EEO Counselor contact.

Agency No. DECWP20060016

In Agency No. DECWP20060016 (hereinafter referred as "Complaint 2"),

complainant initiated EEO Counselor contact on February 13, 2006.

Informal efforts to resolve his concerns were unsuccessful. On June 26,

2006, complainant filed a formal EEO complaint. Therein, complainant

claimed that he was the victim of unlawful employment discrimination on

the bases of color (light-skinned Black) and in reprisal for prior EEO

activity when:

(a) in January 2000, his 139 hours of annual leave was not restored;

(b) in January 2003, his 196 hours of annual leave was not restored; and

(c) on January 8, 2006, he learned that his 113 hours of annual leave

would not be restored.

On July 11, 2006, the agency issued a partial dismissal. The agency

accepted for investigation claim (c). The agency dismissed claims

(a) and (b) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of

untimely EEO Counselor contact. The agency also dismissed claim (b) on

the alternative grounds that complainant already raised the matter under

a negotiated grievance procedure that permits claims of discrimination

pursuant to 29 C.F.R. � 1614.107(a)(4).

The record reflects that the agency consolidated the following accepted

claims (claim (a) of Complaint 1 and claim (c) of Complaint 2) for

investigation:

(1) on December 4, 2005, he was suspended from work without pay for

alleged failure to follow work instructions and procedures; and

(2) on January 8, 2006, he learned that 113 hours of annual leave would

not be restored. 1

At the conclusion of the investigation of claims (1) and (2), complainant

was provided with a copy of the report of investigation and notice

of his right to request a hearing before an EEOC Administrative Judge.

When complainant did not request a hearing within the time frame provided

in 29 C.F.R. � 1614.108(f), the agency issued a final decision pursuant

to 29 C.F.R. � 1614.110(b).

In its final decision, the agency found no discrimination concerning

claims (1) and (2). Without addressing the prima facie analysis

of complainant's disparate treatment based on disability, color and

in reprisal for prior EEO activity, the agency found that management

articulated legitimate, nondiscriminatory reasons for its actions which

complainant failed to show were a pretext for discrimination. Regarding

the basis of disability, the agency found that complainant did now show

that he is an individual with a disability under the Rehabilitation Act

because he failed to show that his impairments substantially limited

any major life activity. The agency further found no evidence in the

record that management was aware of complainant's alleged disability.2

Moreover, the agency found no evidence in the record that management

had prior knowledge of complainant's prior protected activity.

Regarding claim (1), the record reflects that complainant's second-level

Supervisor (S2) stated that he was the deciding official to suspend

complainant for fourteen days without pay, for failure to follow

instructions and procedures.3 S2 further stated that he suspended

complainant "because the progression of previous disciplinary actions had

not made any improvements in [complainant's] conduct." Specifically,

S2 stated that complainant's first-level Supervisor (S1) submitted a

proposal to suspend complainant for failure to follow instructions and

procedures. S2 stated that complainant did not respond to the proposed

suspension "either orally or in writing that he had a disability that

prevented him from following instructions." S2 stated that after he

reviewed the proposal and considered complainant's past disciplinary

actions, he sustained the proposed suspension. S2 stated "I had the

option for a lesser penalty but [complainant's] continued failure to

follow instructions convinced me that lesser penalties would not improve

his conduct." S2 stated that during the relevant time, he was unaware

of complainant's alleged disability or his prior protected activity.

Furthermore, S2 stated that complainant's conduct was the only factor

in his determination to suspend him, not his alleged disability or prior

protected activity.

Regarding claim (2), the record reflects that S1 stated that he requested

restoration of complainant's annual leave and that "the actual amount

of leave to be stored was 81 not 113 and when I presented this to

[complainant] he refused to sign this document on 02-14-2006 due to

pending action on his part." Specifically, S1 stated that he completed

the form requesting restoration of complainant's annual leave and

presented to complainant for his signature but complainant "refused to

sign." S1 stated that as a Manager for at least ten years, complainant

"was made fully aware of failure to comply with written guidelines could

cause the complainant to [lose] his or her annual leave." S1 stated

that during the relevant time he was not aware of complainant's alleged

disability but was aware that complainant had back problems. S1 also

stated that he was not aware of complainant's prior protected activity.

The record further reflects that S2 stated that the process required

requests for restoration of annual leave to be submitted no later than

February 17, 2006. S2 stated that complainant "must sign the form

requesting restoration of leave. The Supervisor [S1] then completes the

supervisory checklist and recommends approval or disapproval. Then form

is then forwarded by the Store Director through the Zone Manager to

the Region Director or his designated representative for approval."

S2 stated "to the best of my knowledge, [complainant] never requested

restoration of his annual leave for 2005. S2 stated that on February

15, 2006, he received a note from S1 stating that complainant refused

to sign the form due to a pending issue he was pursuing. S2 stated

that he then instructed S1 to "Please advise [complainant] that any

loss of annual leave for calendar year 2005 is due to his failure to

request restoration." S2 stated that a decision was never made "to deny

restoration of complainant's annual leave for year 2005 because he failed

to complete the paperwork to request restoration." S2 stated that the

actual hours of annual leave forfeited in 2005 was 81 and not 113.

Further, S2 stated that during the relevant time, complainant was aware

of the guidelines for restoring annual leave. Specifically, S2 stated

that on December 28, 2005, he provided S1 and complainant a memorandum

"on restored leave 2006 for leave year 2005." S2 stated that on January

10, 2006, S1 and complainant received guidelines "that required the

commissaries to submit the request for restoration of annual leave no

later than February 17, 2006." S2 stated, however, complainant refused

to sign the document that would have requested restoration of his annual

leave.

As a threshold matter, the Commission notes that the agency issued two

partial dismissals on March 21, 2006 and July 11, 2006, respectively.

Therein, the agency dismissed several claims on various procedural

grounds. The Commission determines that in the instant appeal,

complainant does not expressly address the claims that were the subject

of the two partial dismissals, and as a consequence, the Commission will

not further address them herein.

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Department of the Navy,

EEOC Petition No. 03900056 (May 31, 1990).

The Commission finds that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Moreover, we find that

complainant has not shown that the agency's articulated reasons, as

discussed above, were a pretext for discrimination.

The agency's final decision finding no discrimination concerning claims

(1) and (2) is AFFIRMED.

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 17, 2007

__________________

Date

1 For ease of reference, the Commission has numbered the accepted claims

as claims (1) - (2).

2 For the purposes of analysis, and without specifically finding,

the Commission will assume that complainant is an individual with a

disability under the Rehabilitation Act.

3 The record reflects that in the Decision on the Proposed Notice of

Suspension dated November 29, 2005, S2 determined that from April 2005

to July 2205, complainant repeatedly failed to follow the following

instructions and procedures: did not investigate the excessive salvage

that was thrown away; did not follow the Privacy Act by providing an

employee her supervisory work folder; did not perform Customer Service

Support Team Duty; did not take pictures of the display or order aisle

markers as instructed; and did not complete paperwork in accordance with

established procedures.

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0120071689

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120071689

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