0120093050
08-12-2011
Roger C. Ferreira, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Roger C. Ferreira,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120093050
Hearing No. 480-2009-00188X
Agency No. 08-00244-00380
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the June 2, 2009 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Purchasing Agent at the Agency’s Fleet and Industrial Supply
Center in Seal Beach, California. On February 29, 2008, Complainant
filed an EEO complaint alleging that the Agency discriminated against
and subjected him to a hostile work environment on the bases of race
(Caucasian), sex (male), color (White), age (59), and in reprisal for
prior protected EEO activity when:
1. On September 20, 2007, Complainant was confronted by his first-level
supervisor (S1) about not working overtime;
2. On September 29, 2007, Complainant’s work folders were destroyed;
3. On November 29, 2007, the acting supervisor (AS) sent Complainant an
email insinuating Complainant’s work performance was not up to par;
4.
On November 29, 2007, AS called Complainant and confronted him with a
hostile, coarse tone and unprofessional cross-examination;
5. On November 29, 2007, AS falsely accused Complainant of hanging up
the telephone on him;
6. On November 29, 2007, AS placed his telephone on speaker thereby
broadcasting Complainant’s private conversation;
7. On December 10, 2007, Complainant was suddenly informed he needed
to take a government car and drive from Seal Beach to San Diego the
following day for a meeting;
8. On December 11, 2007, AS held Complainant hostage for a five-hour
meeting;
9. On December 11, 2007, Complainant was falsely accused of unacceptable
behavior in the workplace;
10. On December 14, 2007, Complainant was required to return to a
meeting in San Diego and falsely accused of unacceptable behavior in
the workplace;
11. On December 14, 2007, Complainant’s government identification was
taken from him;
12. Since December 14, 2007, Complainant has been obliged to report for
counseling to the Civilian Employee Assistance Program (CEAP);
13. On December 14, 2007, Complainant was given a formal document
regarding Administrative Leave and told not to report to his workplace
until further notice;
14. On January 10, 2008, AS told Complainant “All women are afraid
of you;”
15. On January 16, 2008, Complainant was issued a Letter of Requirement;
16. On January 16, 2008, Complainant’s security pass was de-activated;
and
17. On January 16 and January 22, 2008, Complainant was forced to use
annual leave for two meetings.
At the conclusion of its 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).
Complainant timely requested a hearing, but subsequently withdrew the
request. The assigned AJ remanded the matter to the Agency for a FAD,
which the Agency issued pursuant to 29 C.F.R. § 1614.110(b).
Initially, the Agency assumed arguendo that Complainant had established
a prima facie case of discrimination on the alleged bases and determined
that the Agency had articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, as to claim (1), on September 23, 2007,
Complainant’s second level supervisor (S2) sent an email to the staff
informing them that September 29 to September 30, 2007, were mandatory
overtime days. S1 stated that when Complainant did not report to work
as scheduled, S2 asked her to contact Complainant to ask why he had not
reported to work as directed. Complainant’s third-level supervisor
(S3) affirmed that the entire department was informed of the requirement
for working mandatory overtime due to mission requirements related to
end-of-year fiscal requirements. S3 noted that Complainant did not
report for work as directed, nor had he requested an exception to the
requirement.
Regarding claim (2), S1 asserted that on September 29, 2007, she took
approximately 15 files from Complainant's desk and redistributed the
work because of end-of-year fiscal requirements. On October 2, 2007,
Complainant sent S1 an email stating that there were 8 fiscal year (FY)
2008 requirements listed on his work in progress report that he did
not have in his possession, and that he had given them to the contract
employee the previous week for her to do research, which he had not
received back. S1 confirmed that she told Complainant that she had
taken all of the FY2007 requirements and one FY2008 requirement that
the contract employee had. She also told Complainant that one of the
requirements he had listed had been cancelled from the workload on
September 18, 2007. S1 explained that on September 29 and September
30, 2007, she reassigned Complainant's folders because awards had to be
obligated before the end of the fiscal year.
In regard to claims (3) – (6), on November 28, 2007, Complainant
emailed AS asking to obtain a key to the building and a warrant.
AS affirmed that he informed Complainant that the Division Chief
assigned keys and that warrants were not an entitlement. Further,
AS stated that he summarized the requirements for obtaining a warrant
and asked Complainant to call him. Complainant failed to respond;
therefore, AS called Complainant the next day to discuss the warrant
issue and Complainant’s work-in-progress report. AS maintained that
when he told Complainant that he provided insufficient justification for
entitlement to warrant, Complainant became angry and raised his voice
at him. AS told Complainant that he was looking at Complainant’s
work-in-progress report which contained many assignments that were past
deadline and Complainant abruptly said that the conversation was over.
AS ordered Complainant not to hang up the phone, but Complainant ignored
him and hung up. AS denied yelling at Complainant and explained that he
told Complainant that he was on speakerphone. AS added that he received
calls from Complainant’s co-workers about the incident because they
heard Complainant raise his voice and slam the phone. The co-workers
told him that Complainant behaved that way with people all of the time.
Regarding claims (7) – (9), AS explained that he asked to meet
with Complainant because of allegations made by co-workers about his
irrational behavior in the workplace and to discuss the incident where
Complainant hung up on him. AS advised Complainant that he could have a
union representative present at the meeting, but no one else, including
his wife. AS affirmed that after the phone incident, employees told
him about other incidents involving Complainant and provided statements.
The Activity Security Specialist stated that she contacted security and
law enforcement personnel to “preserve the peace” because Complainant
was loud and seemed emotional when he arrived for the meeting.
As to claims (10) – (14), AS explained that he asked Complainant to
come to the office on December 14, 2007, so he could place Complainant
on administrative leave while the Complainant’s workplace behavior
incidents were investigated. He maintained that he wanted Complainant
to go to CEAP because he wanted Complainant evaluated to see if he
could place Complainant back in the workplace. AS confirmed that the
investigation substantiated the allegations concerning Complainant’s
behavior. AS added that he took away Complainant’s credentials
because he did not want Complainant returning to the office and
intimidating co-workers. AS denied telling Complainant that all women
were afraid of him and stated that he only informed Complainant that
there were allegations about his behavior, referring to co-workers in
Complainant’s office.
Regarding claim (15), AS affirmed that on January 16, 2008, he issued
a Letter of Requirement to Complainant because it was the beginning
stage of the oral counseling process regarding acceptable behavior in
the workplace. The letter summarized the incidents of Complainant’s
unacceptable conduct between November 29 and December 11, 2007, and
clarified what constituted insubordinate conduct and unacceptable,
inappropriate, and disruptive behavior. The letter was not disciplinary
and was not retained in Complainant’s personnel file.
In regard to claim (16), AS denied that Complainant’s security card
was deactivated upon his return from administrative leave. AS believed
that Complainant may have locked himself out. Finally, as to claim (17),
AS explained that Complainant was asked to go to training on resolving
workplace disputes; but he was not able to attend the training on the date
scheduled. AS denied that he forced Complainant to take leave; rather,
he suggested to Complainant that he take leave because the extension of
time would allow Complainant to complete his personal obligations.
The FAD determined that Complainant failed to show that the Agency’s
reasons were pretextual. As a result, the FAD concluded that Complainant
had not been discriminated or retaliated against as alleged. In addition,
the FAD found that Complainant had not been subjected to a discriminatory
hostile work environment as Complainant failed to show that the alleged
incidents were related to his protected classes. Complainant submits
no arguments or contentions on appeal.
ANALYSIS AND FINDINGS
Standard of Review
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
(EEO MD-110), at 9-15 (Nov. 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”).
Disparate Treatment
To prevail in a disparate treatment claims 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 Constr. 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 U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 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, 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); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the Commission concurs with the FAD and finds that
the Agency has articulated legitimate, nondiscriminatory reasons for its
actions as stated above. Specifically, as to claim (1), S1 asserted that
she contacted Complainant after he failed to report to work as scheduled
for mandatory overtime. ROI, at 178. Regarding claim (2), S1 affirmed
that on September 29, 2007, she took approximately 15 files from the
Complainant's desk and redistributed the work because of end-of-year
fiscal requirements. Id. at 179. Further, S1 noted that the folders
were not destroyed; rather, they were reassigned because awards had to
be obligated before the end of the fiscal year. Id.
In regard to claims (3) – (6), AS stated that Complainant inquired about
receiving a warrant/signing authority. AS maintained that he informed
Complainant that warrants are not an entitlement, provided a summary
of the requirements for obtaining a warrant, and asked Complainant
to call him. ROI, at 185. AS did not hear back from Complainant;
therefore, AS checked Complainant’s work-in-progress report to see if
Complainant had a backlog. Id. He noticed that Complainant’s work
was overdue, so he called Complainant to discuss the warrant issue and
his work-in-progress. Id. AS affirmed that he explained to Complainant
that his reasons for receiving a warrant were insufficient and Complainant
hung up once AS mentioned his work-in-progress report despite AS’s
orders for him not to do so. Id. AS maintained that Complainant knew
he was on speakerphone and denied yelling at Complainant. Id. at 186.
As to claims (7) – (9), AS confirmed that he asked Complainant to
come to San Diego to meet with him regarding allegations made by his
co-workers about his irrational behavior and the telephone incident.
ROI, at 186. AS affirmed that the meeting was five hours because
Complainant would not cooperate despite AS’s attempts to resolve issues
related to Complainant’s behavior. Id. AS stated that after the phone
incident where Complainant yelled at him, employees told him about other
incidents and submitted statements regarding Complainant’s irrational
behavior. Id. Regarding claims (10) – (14), AS affirmed that he asked
Complainant to return to San Diego so that he could place Complainant on
administrative leave while an investigation into Complainant’s behavior
was conducted. ROI, at 187. AS asserted that he wanted Complainant to
enter CEAP because employees were afraid to work with him and he wanted
Complainant evaluated to see if he could place him back in the workplace.
Id. AS maintained that he took away Complainant’s credentials because
he did not want Complainant coming back and intimidating his co-workers.
Id. AS denied telling Complainant that women were afraid him, rather;
AS spoke of the allegations about Complainant’s behavior and the women
he referenced were co-workers in his office. Id.
In regard to claim (15), AS affirmed that he gave Complainant the Letter
of Requirement because it was the beginning stage of the oral counseling
regarding acceptable behavior in the workplace. ROI, at 187. Finally,
AS denied that Complainant’s security pass was deactivated; rather,
he assumed Complainant locked himself out. Id. at 188.
Complainant now bears the burden of establishing that the Agency's stated
reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec'y
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 persuasive
evidence that discrimination was a factor in any of the Agency's actions.
At all times, the ultimate burden of persuasion 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 animus. Complainant has failed to carry this
burden. Accordingly, the Commission finds that Complainant has failed
to show that he was discriminated or retaliated against as alleged.
Hostile Work Environment
To the extent that Complainant is alleging that he was subjected
to a hostile work environment, the Commission finds that under the
standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993) that Complainant's claim of hostile work environment must fail.
See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994). A finding that Complainant was subjected
to a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the
Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal
Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 FAD 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:
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 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
August 12, 2011
Date
2
0120093050
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120093050