U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jason M. Kyser,
Complainant,
v.
,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01-2011-2117
Hearing No. 420-2010-00055-X
Agency No. 7K0J09008
DECISION
On March 1, 2011, Complainant filed an appeal from the Agency’s February 2, 2011, final
order 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 order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Materials
Handler, NA-6904-04, at the Sand Dollar Inn, on the Tyndall Air Force Base, in Florida.
During the relevant time, Person A, the Logistics Manager, was Complainant’s first level
supervisor from August 2008 through May 2009.1
Person B was the Assistant Lodging
Manager at the Sand Dollar Inn and served as Complainant’s first level supervisor after Person
A’s termination. Person C was the Lodging Manager and was Complainant’s third level
supervisor.
Complainant filed an EEO complaint dated April 3, 2009, which was subsequently amended,
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of race (Caucasian), color (white), sex (male), and in reprisal for
prior protected EEO activity when:
1 The record reveals that Person A was terminated from the Agency in May 2009; however,
his termination had nothing to do with the issues alleged in the present complaint.
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1. Complainant’s supervisor advised him on the proper wear of the work uniform;
2. Comments of a sexual nature were made by Complainant’s supervisor;
3. Complainant’s supervisor assigned him duties in the warehouse; and
4. On January 8, 2009, Complainant’s supervisor made an unwelcome racially
charged comment.
5. Complainant also alleged that he was subjected to reprisal for his prior EEO
activity when he was suspended on April 12, 2009.
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). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for a decision without a
hearing and issued a decision without a hearing on December 20, 2010.
In his decision, the AJ noted that Complainant was told to tuck in his shirt at least once a week
by Person A. The AJ recognized Person C also asked Complainant to tuck in his shirt. The
AJ found Complainant refused to comply with the requests on each occasion. The AJ stated
the need for proper wearing of the uniform had been discussed in monthly staff meetings. The
AJ noted Complainant had been provided a copy of a written policy regarding the issue. The
AJ found that Person A also asked other employees whose shirts were not tucked in to tuck in
their shirts. The AJ found that the Agency’s guide to disciplinary action allows discipline
ranging from a reprimand to a removal for the first offense of refusal to comply with proper
orders.
The AJ noted that Complainant claimed that Person B asked him to zip up the zipper on his
pants repeatedly. The AJ found Complainant’s zipper was down on each of these occasions.
The AJ noted that on January 12, 2009, Complainant was performing warehouse duties when
Person A told him to zip up his zipper. The AJ noted Complainant’s zipper was down at this
time. The AJ noted that at the time the comments were made, Complainant’s shirt was not
tucked in and his pants were unzipped. The AJ determined Complainant was not aggrieved
with regard to this claims (1) and (2).
With regard to claim (3), the AJ noted that Complainant was assigned to the warehouse as part
of his duties in accordance with his position description. The AJ recognized the Lodging
Office was approaching an accreditation and extra help was needed in the warehouse as a
result. The AJ noted that Complainant occasionally volunteered to work in the warehouse, and
he received a cash reward for his efforts after the accreditation. Additionally, the AJ noted
that there was no agreement that precluded management from assigning warehouse duties to
Complainant. The AJ determined Complainant was not aggrieved with respect to having to
perform duties in the warehouse. The AJ found the assignment of duties in the warehouse was
consistent with his job description.
With respect to claim (4), the AJ noted that Complainant claimed on January 8, 2009, Person
A made an unwelcome racially charged comment. The AJ noted a co-worker referred to
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Person A as Complainant (Caucasian/White). The AJ noted that Person A then rubbed the
skin of his arm to point out his color and stated that he was not Complainant. The AJ
determined Complainant was not aggrieved with respect to this claim.
With respect to claim (5), the AJ noted that Complainant alleged his suspension dated April 12,
2009, was issued in reprisal for his prior EEO activity. The AJ noted that Co-Worker 1
complained that he was hit on the back by Complainant on February 6, 2009. The AJ noted
that although there were no eyewitnesses in the hallway where the event took place, Co-
Worker 1 was heard crying, following the alleged hitting incident.
The AJ noted that Complainant received a five-day suspension for his conduct. The AJ noted
that Person A proposed the suspension on March 23, 2009, and the decision was issued on
April 2, 2009. The AJ noted the suspension was served from April 6 – 10, 2009. The AJ
recognized that Complainant was offered an opportunity to respond to the proposed suspension
and was provided adequate time to respond. The AJ recognized that Complainant did not
submit a response. The AJ noted the Air Force Manual regarding discipline sets the
appropriate range of punishment for the first offense of fighting, threatening, or inflicting
bodily harm on another person at a reprimand to a removal.
The AJ found the available evidence established a prima facie case of reprisal regarding
Complainant’s suspension. The AJ determined the Agency articulated a legitimate, non-
discriminatory reason for awarding Complainant the discipline at issue, the alleged assault of a
co-worker. The AJ found no evidence of pretext.
Finally, the AJ found Complainant did not establish a prima facie case of hostile work
environment on the basis of his protected status. The AJ found Complainant failed to establish
that his supervisor’s actions were so severe or pervasive that they created a hostile work
environment.
The Agency subsequently issued a final order dated February 2, 2011. The Agency’s final
order fully implemented the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.
On appeal, Complainant claims he has established a prima facie case of discrimination based
on reprisal. Complainant argues that Person Y (Co-Worker 1’s job coach) did not actually see
a mark on Co-Worker 1’s back after the alleged incident and notes that Person Y did not sign
his declaration. Complainant also questions whether Co-Worker 1’s back really hurt since Co-
Worker 1 worked for six and one half hours that day. Moreover, Complainant notes that in
her declaration, the Custodial Work Leader (Person D) stated that she did not see or hear
Complainant hit Co-Worker 1. Moreover, Complainant notes that Person D stated that Co-
Worker 1 occasionally made stuff up which did not occur. Complainant also notes that the
Housekeeper (Person E) states in her declaration that she overheard Co-Worker 1 comment
that he was going to get Complainant in trouble. In addition, Complainant notes that Person F
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also stated that she did not see or hear anything indicating Complainant ever touched Co-
Worker 1.
In response to Complainant’s appeal, the Agency notes Complainant’s position is contradictory
in that on one hand he relies on Person Y’s statement that he did not lift up Co-Worker 1’s
shirt to see if there was a mark and at the same time argues that Person Y’s statement should
not be assigned any weight because it was not signed. The Agency argues Person Y’s
statement was valid evidence. Moreover, the Agency notes that Person B did not need Person
Y’s account of Co-Worker 1’s demeanor as he personally observed Co-Worker 1 crying and
saw Co-Worker 1’s back was hurting.
In addition, the Agency notes that Complainant picks certain comments from the file; however,
he fails to consider the entire statement upon which he relies. For example, the Agency notes
that Complainant’s relies on Person D’s statement that Co-Worker 1 occasionally makes stuff
up; however, he fails to point out that Person D said she has no reason to believe Person A
would charge Complainant with hitting Co-Worker 1 because of his race, color, or in reprisal
for his protected EEO activity. The Agency also notes that that Person E’s comment that Co-
Worker 1 said he was going to get Complainant in trouble occurred more than a month after
Complainant allegedly hit Co-Worker 1. Finally, the Agency notes that both Person D and
Person E admit that they were not watching Complainant or Co-Worker 1 at the time of the
incident.
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 lawâ€).
Upon review, we find the AJ’s issuance of summary judgment was appropriate as there are no
genuine issues of material fact in dispute. We note that Complainant does not challenge the
definition of the complaint by the AJ. Moreover, we find the record in the present case was
fully developed. Even if we assume that Complainant is aggrieved by all of the incidents in the
complaint, there is no indication that any of the incidents were motivated by discrimination.
Upon review, we find Complainant failed to prove by a preponderance of evidence that he was
subjected to harassment. Specifically, we find Complainant has not established that the
incidents alleged rose to the level of harassment or were motivated by discrimination or were
taken in reprisal for his prior protected EEO activity.
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Moreover, in the present case, we find the Agency articulated legitimate, non-discriminatory
reasons for the discrete incidents alleged. Specifically, with regard to issue (3), the Agency
noted that Complainant was assigned warehouse duties because the lodging office was facing
an inspection and the warehouse was not in presentable condition. The record revealed that the
warehouse duties were within Complainant’s position description, Complainant had experience
working in the warehouse, and that Complainant had volunteered to work in the warehouse
previously. Moreover, the record revealed that during the relevant time Complainant and Co-
Worker 2 were assigned to prepare the warehouse for the upcoming inspection and that both of
them received a bonus for their work.
Finally, the Agency stated that Complainant was suspended for physically striking Co-Worker
1. While Complainant stated he did not hit Co-Worker 1 as alleged, the Agency noted that it
based its decision to suspend Complainant on reliable evidence. Specifically, the Agency noted
that more than one witness stated that Co-Worker 1’s claim was believable. Moreover, the
Agency noted that it gave Complainant an opportunity to present his side of the story when it
presented him the notice of proposed suspension; however, he did not respond. The Agency
stated that it relied on evidence that was reliable in suspending Complainant. While a Human
Resources Officer stated she disagreed with the ultimate outcome, she stated the suspension
action was procedurally sound. Upon review, we find Complainant failed to show that the
Agency’s articulated reasons were a pretext for discrimination or retaliation.
CONCLUSION
Accordingly, the Agency’s final order 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,
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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 “departmentâ€
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 Actionâ€).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 20, 2013
Date
