Robert A. Johnson, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency. Appeal No. 0120090115 Hearing No. 570-2008-00063X Agency No. RF0D07005F08 DECISION Complainant filed an appeal from the agency's September 17, 2008 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 Sales Clerk at the agency's Gear Up Sports Store at Ramstein Air Base, Germany. Complainant filed an EEO complaint alleging that he was discriminated against on the basis of race (Black) and reprisal when: 1. In June 2006, a co-worker, E1, used the term "boy" when referring to complainant; 2. On January 6, 2007, complainant received a letter of dismissal from his supervisor1; 3. Complainant was terminated from his position on June 12, 2007.2 Previously, by letter dated May 24, 2007, the agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The agency found that complainant requested EEO counseling more than 45 days from June 2006 when the incident in claim (1) occurred. At the conclusion of the investigation of the remaining claims, 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 (AJ). Complainant requested a hearing. The AJ denied the hearing request on the grounds that complainant failed to show good cause why his complaint should not be dismissed from the hearing process for his failure to respond to the agency's discovery requests. The AJ remanded the complaint to the agency, and the agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the agency found that in June 2006, complainant accused his co-worker, E1, of referring to him as "boy" or "big boy" in a racially pejorative manner. After discussion with a management official, E1 and complainant shook hands and agreed they could continue to work together. E1 later became complainant's supervisor. In December 2006, E1 issued a notice of termination to complainant citing one incident of a failure to follow written instructions and two incidents of insubordination. Complainant received the notice on January 6, 2007. Complainant filed a grievance regarding the notice. Complainant's grievance was resolved at Step 1 and the notice was rescinded. The agency noted that complainant expressed satisfaction with the results of the grievance procedure. Complainant remained, the agency noted, unsatisfied with the agency's failure to address his renewed concerns over the incident of June 2006, and so, complainant continued pursuit of relief through the EEO process. On April 25, 2007, complainant and E1 engaged in conversation during which complainant made several statements to E1 regarding certain reported violent incidents that had occurred in the workplace of other agencies, including acts committed by postal workers. Complainant commented to E1 that complainant believed that irresponsible supervisors precipitated the acts. The agency noted that complainant told E1, "You don't know what a man is capable of when he feels he can't make his financial obligations." E1 reported this conversation to his supervisor, S1. Based on E1's description of the conversation including complainant's demeanor and tone of voice, as well as his comments, complainant received a notice of termination for threatening E1 with physical violence, issued by S1, on June 12, 2007 (claim (3)). The agency found that complainant did not dispute the actual events contained in the notice of termination issued by E1. Rather, in his responses, the agency noted that complainant stated he believed E1 had no supervisory authority over him. Similarly, complainant did not deny that he discussed the incidents of workplace violence with E1. Complainant denied threatening E1, stating that instead he was only emphasizing to E1 complainant's opinion of supervisory responsibility from complainant's philosophical point of view. The agency found the evidence showed the steps taken by E1 and S1 were motivated by a desire to address complainant's unacceptable conduct in the workplace and that complainant did not show that their actions were a pretext to mask discrimination. Further, the agency found that even if claim (1) had been timely raised with an EEO Counselor, that complainant was not aggrieved by the isolated incident that occurred in June 2006. The decision concluded that complainant failed to prove that he was subjected to discrimination as alleged. On appeal, complainant objects to the dismissal of his complaint from the hearings process, stating that he did provide the discovery responses as ordered by the AJ. Complainant further states that S1 and E1 conspired to manipulate complainant's actions by requiring complainant to report for duty only to issue the notice of termination in December 2006 and that S1 deliberately misconstrued the conversation between E1 and himself of April 25, 2007 so that S1 could terminate complainant's employment. Complainant denies that he ever threatened E1 and that he responded with multiple memoranda explaining the circumstances that existed between E1 and complainant from the time they were co-workers through December 2006, when E1 became complainant's supervisor. Complainant states that S1 was not, as he claims, properly addressing a perceived threat of physical violence, but S1 sought to retaliate against complainant by terminating his employment after complainant complained about E1's discriminatory racial slur in 2006 and after expressing his belief that E1 was an irresponsible supervisor. 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 EEOC Management Directive 110, 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"). To prevail in a disparate treatment claim 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). As a preliminary matter, the Commission addresses the AJ's decision to dismiss the hearing request. The Commission's regulations afford broad authority for the conduct of hearings by Administrative Judges. See 29 C.F.R. § 1614.109 et seq.; Rountree v. Department of Treasury, EEOC Appeal No. 07A00015 (July 13, 2001). When a complainant or agency fails to comply with an AJ's order, an AJ may take action against non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3), up to and including issuing a decision in favor of the opposing party, or take such other actions as appropriate. See 29 C.F.R. § 1614.109(f)(3) (iv) and (v). Here, the AJ's Ac-knowledgment and Order of December 26, 2007, informed complainant of his responsibility to participate in discovery and otherwise abide by the orders of the AJ. Complainant was further advised that failure to abide by the AJ's orders could result in sanctions up to and including dismissal of his complaint. Subsequently, by order dated March 11, 2008, the AJ ordered complainant to explain his failure to fully and timely respond to the agency's discovery request by March 17, 2008. The order clearly indicated that failure to comply fully with the order could result in the cancellation of the request for a hearing. In his Order of Dismissal dated March 31, 2008, the AJ notes that complainant responded to the AJ's order by arguing the merits of his complaint while failing to address the matters of discovery. Accordingly, the AJ dismissed the complaint from the hearing process and directed the agency to issue a final decision on the merits of complainant's complaint. We find no abuse of the AJ's discretion in dismissing complainant's complaint from the hearing process. Specifically, we find that in his response to the agency's Motion to Compel discovery, complainant provides two reasons for failing to agree to attend his deposition. Complainant argues that the deposition is an "obviously flawed and questionable deposition session" and he also claims that attorney's fees would pose a financial hardship for him. We further note that complainant "declined with caveat" in response to a majority of the agency's Requests for Admissions, which responses were not timely clarified or adequately explained, as ordered by the AJ.3 We therefore find the complaint was properly dismissed from the hearing process. In the instant case, we find the record supports the agency's final decision. We find the agency properly dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. We find that complainant did not initiate the EEO process within 45 days of the date on which the incident occurred. Regarding the AJ's order of March 31, 2008, we find the complaint was properly dismissed from the hearing process. The record shows that We consider complainant's statements attesting to his conflicts with E1, which intensified in December 2006, when E1 became complainant's supervisor. We note that approximately six months elapsed between the time of the incident in which E1 referred to complainant with the racially charged term, "boy" or "big boy". Complainant and E1 appeared to have put the isolated incident behind them until the time that complainant found himself supervised by E1. We further find that complainant properly sought relief through the agency's negotiated grievance process from E1's decision to terminate him for acts that complainant did not deny. We observe that despite discussions intended to assist E1 and complainant to resolve the personal issues between them, it was complainant, and not E1, who persisted in his efforts to communicate with E1 the seriousness of the June 2006 incident, complainant's lack of respect for decisions made by irresponsible supervisors, including E1, and to warn E1 of the extreme actions taken by unhappy employees at other agencies. We find the agency construed complainant's remarks as a threat to E1 (whether real or only perceived on E1's part), which motivated the agency to take the action it did. We find nothing in the record shows that the agency's actions were a pretext. Significantly, we note, as did the agency, that complainant did not deny challenging E1's directions in December 2006. While the agency's decision to terminate complainant in June 2007 followed shortly after complainant initiated the EEO process, we find the agency articulated reasonable, non-discriminatory reasons for issuing the second notice of termination. We find complainant has not shown by a preponderance of the evidence that his race or reprisal motivated the agency as alleged in claims (2) or (3) of his complaint. Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1208) 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 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 (S0408) 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 (Z1008) 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 May 6, 2010 __________________ Date 1 Complainant's co-worker, E1, later complainant's supervisor. 2 Claim (3) was amended to complainant's complaint following the acceptance of claim (2) for processing by the agency. 3 Moreover, we note that complainant submitted his own Motion for Summary Judgment, dated March 10, 2008, indicating his position that no factual matters remained in dispute to be resolved by a hearing and that a decision should be rendered without a hearing. ?? ?? ?? ?? 2 0120090115 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120090115