0120111941
03-02-2012
Gregory L. Davis, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Gregory L. Davis,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120111941
Agency No. ARRIA08NOV04689
DECISION
On January 27, 2011, Complainant filed an appeal from the Agency’s
December 22, 2010, final decision 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. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a WG-6901-01 Material Handler, Student Trainee in the Agency’s
Joint Manufacturing Technology Center (JMTC) at the Rock Island Arsenal
in Rock Island, Illinois. During the relevant time, there were four
Material Handler, Student Trainees in JMTC, including Complainant
and Mr. M. Supervisor 1 was the first line supervisor for all four
Material Handler, Student Trainees in the JMTC. Supervisor 2 was the
second line supervisor for all four Material Handler, Student Trainees
in the JMTC. On October 8 or 9, 2008, while at work, Complainant and
Mr. M. had a verbal confrontation and Mr. M then shoved Complainant, and
in response Complainant pushed Mr. M. The incident was investigated by
the security force. On October 28, 2008, the Agency issued termination
letters to both Complainant and Mr. M. The union offered both Mr. M. and
Complainant an opportunity to resign in lieu of termination. Mr. M
chose to resign and Complainant did not. Complainant was terminated
effective October 28, 2008.
Complainant filed an EEO complaint, as amended, dated December 16, 2008,
alleging that the Agency discriminated against him on the bases of race
(African-American), color (black) and in reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when it
terminated him.1
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right
to request a hearing before an EEOC Administrative Judge (AJ). 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). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
In its final decision, the Agency determined that Complainant met his
prima facie burden with respect to his claim of reprisal, and assumed for
the sake of argument, that he met his burden on the bases of race and
color discrimination. The Agency found that management's response for
its actions was legitimate and nondiscriminatory. The Agency noted that
Complainant was terminated for making inappropriate physical contact with
another employee in October 2008. The Agency stated that Complainant
does not dispute that such an incident occurred; and, furthermore, he
stated that he told Supervisor 1 that he and Mr. M had gotten into a
verbal confrontation that spilled out onto a loading dock and when he
left, Mr. M said some stuff to him. The Agency noted that Complainant
stated when he came back and stood to talk to him, Mr. M pushed him and he
pushed Mr. M off "in a defensive manner.” The Agency found that other
than his initial assertions, Complainant presented no direct evidence,
no corroborating testimony from another witness, and no documentation
to confirm his claim that management's actions were discriminatory.
On appeal, Complainant states at the time of his termination he had more
than 20 months of tenure in his position as Student Trainee Material
Handler and argues he was entitled to the job protection procedures
contained in 5 U.S.C. §752.404 and 5 C.F.R. §7513. He claims that
the Agency failed to provide him these protections.
Complainant also claims that for months prior to his termination, Mr. M
called him “a nigger” or referred to him as “[y]ou stupid nigger,"
almost every day. Complainant notes that on August 20, 2008, he filed a
discrimination complaint with the Agency EEO Office, against Supervisor 1
and Supervisor 2, claiming that they failed to take action to protect him
from a hostile work environment, discrimination, and workplace violence
committed by Mr. M.
Complainant claims the Agency failed to take into consideration that
Complainant was not the aggressor in the October 2008 situation.
Complainant states he was in a defensive position in the form of
raising his hands in front of himself, palms facing toward Mr. M.
Complainant admits that when he put his hands up to protect himself, he
ended up touching Mr. M, because Mr. M was standing six to eight inches
from him. He states that after Mr. M shoved him he pushed Mr. M off in
a defensive manner.
In response to Complainant's appeal, the Agency claims Complainant
cannot show that his history with Mr. M had any influence on Supervisor
1's termination decision. The Agency claims that the evidence shows
that Supervisor 1 terminated both Complainant and Mr. M based on
the physical altercation between the two. The Agency argues that
Complainant's characterization of his actions as self defense is
insufficient to establish that the termination was discriminatory or
retaliatory because he cannot point to any other “non aggressor"
who was treated differently. The Agency also notes that Complainant
cannot show that the Agency’s treatment of him was linked to his race,
color, or protected activity. The Agency also states that Complainant's
argument that he was denied his “rights to job protection" does not
raise an inference that his termination was discriminatory or retaliatory
or that the Agency's stated reason was pretext.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
At the outset, we note the record reveals that Complainant previously
filed an EEO complaint under Agency Case No. ARRIA08JUL02732 in
August 2008. In this prior case, Complainant alleged that he was
discriminated against based on his race, sex, and age from May 12,
2008, through July 8, 2008, when management allowed coworkers to
subject him to a hostile work environment. In that prior complaint,
Complainant named several actions allegedly taken by Mr. M. Agency Case
No. ARRIA08JULY02732 was dismissed by the Agency for failure to state
a claim. We note that Complainant appealed the Agency dismissal to the
Commission which was affirmed in EEOC Appeal No. 0120090352 (March 10,
2009), request for reconsideration denied, EEOC Request No. 0520090363
(July 14, 2009). While the incidents described in Complainant's prior
complaint are considered as background information in the present case,
we note that those issues have already been decided by the Commission
and are not addressed in the present decision.
We also find that the complaint as accepted by the Agency solely concerns
the termination. Complainant did not challenge the accepted issue during
the investigation and therefore we shall only examine the termination
issue, though we will consider as background information the alleged
incidents of harassment.
Upon review, we find the Agency articulated a legitimate,
non-discriminatory reason for terminating Complainant - the physical
altercation between Complainant and Mr. M that occurred in October 2008.
The record reveals that the Agency issued termination letters to both
Complainant and Mr. M. The statements of Supervisor 1 and Supervisor 2
reveal that the union offered both Complainant and Mr. M the opportunity
to resign in lieu of being terminated. While Mr. M chose to resign from
the Agency in lieu of being terminated, Complainant chose not to resign
and was terminated.
Complainant failed to show by a preponderance of evidence that the
Agency’s actions were a pretext for prohibited discrimination or
retaliation. There is no reason to believe that S1, who ultimately made
the termination decision, did not believe that Complainant had engaged
in inappropriate physical contact. Even if that belief, based upon an
Agency security investigation, was incorrect (something we do not decide
here) or arguable, we find that Complainant has failed to show that
such an error was in anyway motivated by discrimination or in reprisal
for prior protected EEO activity. With regard to his argument that he
was denied job protection procedures contained in 5 U.S.C. §752.404
and 5 C.F.R. §7513, we note that enforcement of such provisions are
outside of the Commission’s jurisdiction. However, to the extent
Complainant was denied any such job protection under these provisions,
we note that he has not shown that such a denial was based on his race,
color, or protected EEO activity.
CONCLUSION
The Agency’s final decision finding no discrimination is AFFIRMED.
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:
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
March 2, 2012
__________________
Date
1 Complainant originally included sex and age as bases in his complaint;
however, he withdrew these two bases during the investigation of his
complaint. Fact Finding Conference, at 57 - 58.
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01-2011-1941
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111941