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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