120170123
03-02-2017
Van P.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Van P.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120170123
Agency No. DON156111500912
DECISION
Complainant timely appealed to this Commission from the Agency's September 6, 2016 dismissal of his complaint of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Janitor at the Agency's Navy Exchange Service Command ("NEX"), Naval Submarine Base New London, in Groton, Connecticut.
On April 23, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (Hispanic) when:
On January 9, 2015, the General Manager of the Groton NEX tricked him into signing a resignation letter for receiving food from a contract vendor.
The Agency accepted Complainant's complaint for investigation, and the following summary is based on the investigator's report. We have also considered Complainant's statements in the precomplaint inquiry because neither he nor his attorney responded to the investigator's requests for information. Complainant did not provide any additional information on appeal either.
On January 9, 2015, Complainant, at the NEX Human Resources Associate ("HR") and the NEX General Manager, who was his third line supervisor ("S3") (both Caucasian). Complainant informed HR and S3 that he knew they intended to fire him for the "Spike's incident," an investigation of food theft at Spike's Junkyard Dogs ("Spike's"), a contract vendor in the NEX food court. The Loss Prevention/Safety Manager ("LP"), who conducted the investigation, identified Complainant on closed circuit surveillance tape either filling his soda cup or accepting food on eight separate occasions without paying between October 12, 2014 and November 2, 2014. On November 5, 2014, LP interviewed Complainant, who admitted that he accepted food without paying for it, mainly from his wife, an employee at Spike's. He apologized, and signed a statement that LP helped him prepare, stating that he accepted approximately $250 worth of stolen food. Multiple Spike's employees, including Complainant's wife, were fired shortly afterward. Complainant alleges that LP assured him that he would not be fired for the theft.
By HR's account, once S3 confirmed that the meeting was about the Spike's incident, Complainant began cursing and describing how hard he worked for the Agency. S3 describes Complainant's demeanor throughout the meeting as "belligerent... which included swearing profusely, raising his voice to a loud level, and an aggressive posture." Further, Complainant would not allow him to explain the proposed disciplinary action. Complainant recalled that he was already upset because immediately prior to the meeting, he spent an hour shoveling snow and salting the walkways in front and behind NEX, while his three coworkers refused to help him. His clothing was wet and his pants were stained with salt. He immediately became "livid" at the prospect of termination for an incident that took place three months earlier, and for which he was told he would not be fired. Complainant also felt he did nothing to deserve termination, contending that he accepted food, but did not steal it, and had been an exemplary employee during his nearly five year tenure with the Agency.
Complainant alleges that S3 forced him to choose between resignation and termination for theft. He also alleges that S3 refused to tell him what the Notice said, claiming that by reading it, Complainant would relinquish his option to resign. Both S3 and HR deny raising the topic of resignation. Rather, Complainant asked to resign. HR recalled asking Complainant if he was sure, and that Complainant said he was. HR printed a blank resignation form for Complainant, who signed it and checked the box indicating that he was resigning for "personal reasons." After turning in his badge and keys, Complainant left without incident. However, he quickly regretted signing the resignation form, believing he was "tricked" into it. Among other things, he alleges that S3 and HR bullied him and "with everything that went on that day [he] just couldn't think straight." After learning that he could not pursue a complaint through his Union because he resigned from the Agency, Complainant raised the instant complaint.
At the conclusion of the investigation into the complaint, the Agency provided Complainant with a copy of the Report of Investigation ("ROI") and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge ("AJ"). The Notice also advised that if Complainant did not respond within 30 days of receiving the ROI, the Agency would issue a final decision without a hearing, appealable to this Commission. Complainant did not respond, so the Agency issued a final decision, finding that it did not discriminate against Complainant on the basis of race as alleged. Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (Jun. 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (Jun. 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Agency provided legitimate nondiscriminatory reasons for its action.
Here, the Agency's legitimate, nondiscriminatory reason for Complainant's separation from the Agency is that he voluntarily resigned. According to HR and S3, the purpose of the meeting was not to terminate Complainant's employment, but to issue a "Fourteen Day Advanced Notice for Proposed Disciplinary Action" ("Notice"). (Although we note that the "proposed disciplinary action" was termination.) The Notice described the surveillance video evidence of Complainant accepting food without paying for it. It also detailed Complainant's November 5, 2014 signed statement, including his acknowledgement that he accepted $250 worth of food without paying for it, and knew that the action constituted theft. By resigning before he received the Notice, Complainant relinquished his option to challenge the proposed discipline through the Union, but avoided having an admission of theft on his employment record.
The Agency has also effectively demonstrated that its Proposed Disciplinary Action, termination, was consistent with its existing disciplinary policy. Specifically, Agency guidance provides that in instances of "giving or receiving unauthorized discounts or services without payment" (emphasis added), removal may be an appropriate disciplinary action for a first offence. Complainant, an employee of nearly five years at the time of the Spike's incident, is presumed to have knowledge that receiving stolen food falls within the Agency's definition of theft, subject to disciplinary action. Moreover, S3 issued the Notice proposing termination in light of strong video evidence and a signed statement from Complainant admitting to the theft. Prior to issuing the Notice, S3 also consulted with the Loss Prevention Office and Labor Employee Relations ("LER"), a division of Human Resources, to determine what disciplinary action would be appropriate. Both recommended termination from employment. We find this sufficient indication that the proposed disciplinary action of termination was based legitimate nondiscriminatory reasons.
Complainant has not provided sufficient evidence to show pretext.
Complainant has not demonstrated how the alleged forced resignation was motivated by discrimination, particularly in light of the Agency's proffered legitimate nondiscriminatory reasons for its actions. Despite being provided with opportunities, Complainant has offered no evidence to support an allegation of discrimination. Complainant does not cite any specific indicia of racial animus in the record. Complainant alleges he was targeted as the only NEX employee targeted in the Spike's investigation, but has not named any of these other more favorably treated employees as a comparator. Further, on appeal, Complainant does not dispute LP's sworn statement that he was the only NEX employee accepting food from Spike's employees without paying for it captured in the surveillance footage for the investigation. We decline to address Complainant's other arguments to support his complaint, as they too lack a connection or nexus to discriminatory motivation.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION
______________________________
Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 2, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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