Corey V. Walton, Complainant, v. John M. McHugh, Secretary, Department of the Army (National Guard Bureau), Agency. Appeal No. 0120072925 Hearing No. 430-2006-00172X Agency No. T-0165-NC-A-02-05-RO DECISION On June 9, 2007, Complainant filed an appeal from the Agency's May 11, 2007, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant had fifteen years of experience working as a Heavy Mobile Equipment Technician, WG-10, at the Agency's Combined Support Maintenance Shop (CSMS) in Raleigh, North Carolina. Complainant was a sergeant in the Army National Guard, but worked in a civilian capacity at CSMS.1 Prior to filing the instant complaint, Complainant engaged in protected EEO activity. Specifically, in early 2000 Complainant was a witness in a coworker's EEO complaint. Soon after on May 30, 2000, Complainant filed an EEO complaint alleging that he was retaliated against for acting as a witness in his coworker's EEO complaint. In June 2000, one of Complainant's supervisors warned a new employee (CW1) (African-American, no prior EEO activity) to stay away from Complainant because he is trouble. CW1 testified that after working with Complainant, he did not find him to be troublesome at all. Also in 2000, a former chief was advised by the Surface Maintenance Manager of CSMS (the highest ranking official in CSMS) to "look out" for Complainant because he "starts trouble." When the former chief spoke up on Complainant's behalf, the Surface Maintenance Manager asked him why he was helping "that boy."2 Additionally, in December 2002 or January 2003, Complainant's then-foreman told Complainant that he was told by other management officials that Complainant was a "troublemaker" and that he was assigned particular tasks so that he would fail. Between October 2003 and September 2004, Complainant's first line supervisor, second line supervisor, and other supervisors told a probationary employee (CW2) (Caucasian, no prior EEO activity) to stay away from Complainant. CW2 testified that the second line supervisor stated that Complainant was "bad news." A supervisor in another section of CSMS told CW2 that the second line supervisor had issues with Complainant and warned him not to talk to or hang out with Complainant because he too would be targeted. CW2 testified that during this time frame he heard Complainant's team leader talking about Complainant to other employees, and he stated "what do you expect from a nigger." CW2 also testified about the racial segregation within the shop. He explained that there were racial issues going on within CSMS, and a majority of the white employees were assigned to one half of the shop while the black employees worked on teams on the other half of the shop. CW2 stated that he was one of the only white employees who worked "on the side with the black people," and he had several comments made to him by white employees such as "did [he] enjoy working with the brothers[?]" The culminating issue that led to the instant complaint occurred on July 1, 2004. On that date, Complainant returned from lunch and parked in the space designated for the General Foreman's secretary (CW3). Complainant asserts that he did not realize he parked in CW3's spot, as he had parked in the space next to it that morning. Within an hour CW3 called Complainant over the pager to discuss the parking spot issue, and Complainant stated that the two resolved the matter. Later, the Assistant Shop Foreman overhead employees talking about the incident, and subsequently summoned Complainant to his office to question him. Complainant explained the incident and that he and CW3 had resolved the matter. The Assistant Shop Foreman asked Complainant why he didn't move the car, and Complainant told him that he and CW3 had resolved the matter amongst themselves and she said that he didn't have to move the car. When the Assistant Shop Foreman continued to question him over and over again about why he didn't move the car, Complainant felt like he was being "entrapped" and he declined to discuss the matter further without a representative present. Notably, CW2 testified that other employees, including himself, parked in somebody else's spot every day for years and no one ever questioned him about it. On July 6, 2004, the General Foreman heard rumors about the parking incident and undertook a fact-finding mission. The General Foreman questioned Complainant in the presence of his first line and second line supervisors. The General Foreman asked him if he could read, in reference to the parking signs, and told him to get a job at McDonald's if he could not read. Complainant stated that he "shut down" after the McDonald's comment. Subsequently, the General Foreman consulted with Human Resources about disciplining Complainant. Human Resources recommended a suspension of 15 to 30 days. On July 8, 2004, the General Foreman issued Complainant a notice of unspecified discipline for insubordination for refusal to answer questions from a supervisor, and for discourtesy for parking in CW3's parking space. On September 14, 2004, after consulting with all of Complainant's supervisors, the General Foreman proposed that Complainant be removed. In November 2004, the General Foreman testified at a DOD appeal hearing that he first considered a reprimand or a suspension for Complainant's conduct, but he decided to issue a removal when he learned that Complainant had been reprimanded for discourteous conduct several years before. The DOD hearings examiner upheld Complainant's removal since it was one of the possible penalties on the list of penalties for disciplinary action, but found it to be seemingly harsh. The hearings examiner noted that it was troubling that the General Foreman ignored Human Resources' recommendation that Complainant be suspended. The hearings examiner included recommendations for alternative, less severe disciplinary actions, such as a suspension and reinstatement at another facility. Complainant contacted an EEO Counselor. The EEO Counselor noted in her report that while interviewing CSMS employees there were widespread feelings of intimidation and fear, and that "[m]ost employees work under constant threat of losing their jobs if they speak out against unfair treatment." Additionally, the report states that supervisors told her that "if it does not affect them, they don't get involved" which indicated to the Counselor that the supervisors are aware of the consequences of going against management officials within CSMS. The report concluded that while discipline was appropriate, the punishment that management chose against Complainant was "harsh in comparison to that received by others for more severe offenses." On February 23, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on November 6, 2004, Complainant was suspended and ultimately removed as a technician from the North Carolina National Guard.3 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 and the AJ held a hearing on March 1, 2007.4 In her April 10, 2007 decision, the EEOC AJ found that Complainant failed to establish a prima facie case of discrimination based on race or retaliation. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not proffer any evidence to support a finding of pretext. The AJ also noted in the conclusion of her decision that there was "convincing testimony regarding racial grouping in the mechanic work area" and cautioned the Agency to review its assignments. She added "[a]s the Agency is well aware, segregation breeds hostility." The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal Complainant asserts that the AJ was wrong when she determined that no discrimination existed. Complainant asserts that the racial segregation within the shop along with the racial comments about him establish that management officials were motivated by discrimination. Complainant stated that white coworkers parked in the wrong parking spots and were never questioned about it. The Agency does not raise any new contentions on appeal. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). Prima Facie Cases Complainant alleges that he was discriminated against on the bases of race and reprisal when he was suspended and ultimately removed from his position. 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). 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Under McDonnell Douglas, a Complainant may establish a prima facie case of race discrimination by showing that: (1) Complainant is a member of a protected group; (2) he was subjected to an adverse employment action; and (3) he was treated less favorably than other similarly situated employees outside of her protected group. We disagree with the AJ's finding that Complainant failed to establish his prima facie cases of race and reprisal discrimination. With regard to race, Complainant, who is African-American, established that he is a member of a protected group. He was subjected to an adverse employment action when he was suspended and ultimately terminated. We disagree with the AJ that Complainant did not identify similarly situated individuals treated more favorably than him. Complainant established that at least two white coworkers, CW2 and another white female coworker, parked in parking spots designated for someone else and were never questioned about it or subjected to discipline. These coworkers worked with Complainant in CSMS, and they were under the same management officials since the decision to discipline and ultimately terminate Complainant came from input from all levels of supervision, including from the top management officials who had command of the entire CSMS. Similarly, Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). We find that Complainant established a prima facie case of reprisal. Specifically, Complainant established that he engaged in prior protected activity when he was involved in his coworker's EEO Complaint and when he filed his own EEO Complaint, which lasted until 2001. Management officials were aware of his EEO activity, since the management officials involved in the coworker's complaint and Complainant's prior complaint certainly had direct knowledge of his activity. Further, other management officials had knowledge of his prior EEO activity, as evidenced by numerous management officials suddenly labeling him as a "troublemaker" immediately following his EEO activity, including the Surface Maintenance Manger - who is the highest ranking official in CSMS. Complainant also established the fourth element of the prima facie case, as he subsequently was subjected to adverse treatment by the Agency when he was suspended and ultimately terminated. We disagree with the AJ that Complainant failed to establish that a nexus exists between the prior protected activity and the adverse action in this complaint. The AJ focused on the lack of a temporal proximity between the termination and the prior protected EEO activity, and noted that three years had passed between the filing of his EEO complaint and his termination. However, temporal proximity is not the only way one may establish that a nexus existed. Complainant established that he has been subjected to ongoing reprisal since his protected activity. Despite the three years lapse, we find that the record is replete with evidence that establishes that throughout those three years there was resounding disapproval from management officials of Complainant's EEO activity. Specifically, since his EEO activity Complainant has been continuously labeled by management officials as a "troublemaker" and new employees were told to "stay away" from Complainant. Further, CW2's testimony established that as recent as between October 2003 and September 2004, many supervisors, including Complainant's first and second line supervisors, told him to stay away from Complainant and that Complainant was "bad news." The time frame of these comments is relevant, because the parking spot issue that ultimately led to Complainant's termination occurred in July 2004 and Complainant was removed in November 2004. Therefore, we find that Complainant established a nexus between his prior protected EEO activity and the adverse action. Agency's Legitimate, Nondiscriminatory Reasons After Complainant establishes his prima facie cases of discrimination, the Agency must articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Here, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency stated that the National Guard atmosphere emphasizes order, respect and discipline, even for civilian employees. The Agency asserts that Complainant was insubordinate and discourteous when he refused to cooperate with a higher ranking officer by refusing to discuss the parking spot issue. Since Complainant was charged with similar conduct years before, the Agency asserts that it properly exercised its discretion to remove him. Pretext In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried his burden to demonstrate pretext. 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); Texas Dep't of Community Affairs, 450 U.S. 256. In order to prevail on his claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward him because of his race and prior protected EEO activity. We note that we cannot second guess the judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). After a careful review of the entire record, we find that a preponderance of the evidence establishes that discriminatory animus towards Complainant's race existed in CSMS. First, we note that discriminatory epithets such as "nigger" and "boy" were used by management officials in reference to Complainant. Those same management officials were involved in the decision to remove Complainant from his position, including the highest ranking official in CSMS. Further, the record establishes that CSMS was racially segregated, and that white employees were assigned to a separate side of the shop from black employees. The only white employee who was assigned to the side of CSMS with the black employees was subjected to many comments, including whether he liked working with "the brothers." The AJ noted that there was "convincing testimony regarding racial grouping in the mechanic work area" and cautioned the Agency to review its assignments. The AJ added "[a]s the Agency is well aware, segregation breeds hostility." A preponderance of the evidence also establishes that reprisal towards Complainant's prior protected EEO activity more likely than not played a role in the Agency's actions. The record establishes that Complainant's termination was the culmination of three years of retaliation towards Complainant. The record establishes that after Complainant engaged in EEO activity, he was repeatedly labeled by management as a "troublemaker" and as someone who "causes trouble," and management officials told subordinates to "stay away from" Complainant. The record also establishes that reprisal was rampant throughout all of CSMS, and every employee feared reprisal by CSMS management officials. For example, the EEO Counselor noted in the report that amongst the CSMS employees interviewed there were widespread feelings of intimidation and fear, and that "[m]ost employees work under constant threat of losing their jobs if they speak out against unfair treatment." CSMS employees told the Counselor that the action taken against Complainant was a way to let them know that the same could happen to them if they spoke out about managements' unfair treatment. Additionally, the record establishes at least two other white employees were permitted to park in spaces other than their own, and they were never questioned about it let alone disciplined. Further, many individuals, including officials within the Agency, did not feel that termination was a suitable disciplinary action for Complainant's offense of parking in the wrong parking spot and refusing to talk about it after it had already been resolved. 5 For example, after reviewing all of the evidence including Complainant's personnel file, Human Resources recommended a suspension from 15 to 30 days for Complainant's conduct. CSMS management officials ignored this recommendation. The DOD hearings examiner found that the removal was harsh, stated that he was surprised that Human Resources' recommendation was ignored by management officials, and also recommended less severe discipline such as a suspension and relocation. CSMS management officials also ignored these recommendations and continued with their decision to terminate Complainant. The EEO Counselor noted in the report that while discipline was appropriate, the punishment that management chose against Complainant was "harsh in comparison to that received by others for more severe offenses." Finally, the AJ noted that she did not find Complainant's refusal to answer managements' continuous questions about the parking lot incident to be unreasonable, and that "[p]arking in the wrong parking space and refusing to continually answer a question that is asked repeatedly seems little cause for termination." The record establishes by a preponderance of the evidence that the decision to terminate Complainant instead of giving him more appropriate discipline was motivated by discriminatory animus towards Complainant's race and in reprisal for his prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order and REMAND this matter to the Agency. We ORDER the Agency to comply with the order below. ORDER 1. Within sixty (60) calendar days from the date this decision becomes final, the Agency shall reinstate Complainant to the position he would have been in had he remained continuously employed from November 6, 2004, including all step increases and promotions. 2. Within sixty (60) calendar days from the date this decision becomes final, the Agency will pay to Complainant all backpay, with interest, and benefits commencing November 6, 2004, which he would have received in the absence of discrimination. Backpay shall be computed in conformity with 5 C.F.R. § 550.805. Benefits required to be restored to make appellant whole include, but are not limited to, the following: seniority, sick and annual leave, health and life insurance, any in-grade step(s) and/or promotion(s) to which he would have been entitled, inter alia. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute about the amount of back pay, interest due, and/or other benefits, the Agency is ORDERED to issue a check to the Complainant for the undisputed amount within 60 calendar days of the date this decision becomes final. The Complainant may petition for enforcement or clarification of the amount in dispute. This petition must be sent to the Compliance Officer as referenced in the implementation paragraph below. 3. The Agency is directed immediately to purge its records of all record of or references to the discriminatory insubordination determination and removal action. 4. The Agency shall conduct a supplemental investigation into Complainant's compensatory damages and any attorney's fees and costs. The Complainant shall cooperate in the Agency's efforts to compute the compensatory damages, attorney's fees, and costs, and shall provide all relevant information requested by the Agency. Within (60) calendar days of the Agency's receipt of Complainant's compensatory damages evidence and attorney's fees statement, the Agency shall issue a final decision addressing the issues of attorney's fees, costs, and compensatory damages. The Agency shall submit a copy of the final decision to the Commission's Compliance Officer. 5. The Agency is further directed to take appropriate preventive steps to ensure that no employee is discriminated against on the basis of race or is subject to reprisal for engaging in EEO activity. This includes ensuring that the mechanic work area in the CSMS is not segregated by race. 6. The Agency shall conduct a minimum of 16 hours of remedial training, with a focus on discrimination based on race and retaliation, for the managers and supervisors found to have engaged in discrimination, including using racially derogatory remarks and threats of reprisal. The Agency shall further conduct a minimum of 8 hours of training for all other supervisors and managers at CSMS to ensure that acts of discrimination and retaliation are not taken against employees. The Agency shall address these employees' responsibilities with respect to eliminating discrimination in the workplace and all other supervisory and managerial responsibilities under equal employment opportunity law. 7. The Agency shall consider taking disciplinary action against the agency officials found to have discriminated against Complainant. The agency shall report its decision. If the Agency decides to take disciplinary action, it shall notify the Commission's Compliance Officer of the action taken. If the Agency decides not to take disciplinary action, it shall inform the Commission's Compliance Officer of the reason(s) for its decision not to impose discipline. 8. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of backpay and other benefits due Complainant, and supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0900) The Agency is ordered to post at its Department of Defense, National Guard Bureau, Combined Support Maintenance Shop facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 7/10/12 __________________ Date 1 The Commission has recognized that National Guard Technicians are covered by Title VII when the alleged discrimination arises from their capacity as Federal civilian employees. See Birkle v. Dep't of the Air Force, EEOC Request No. 05931001 (July 15, 1994); Garcia v. Air Force National Guard, EEOC Appeal No. 01A61442 (August 7, 2006). 2 We note that at the time of this comment, Complainant was not a young boy. He was around 30 years old. 3 Complainant later withdrew additional claims that he was subjected to a hostile work environment based on race and reprisal when on July 1, 2004, he was denied representation, denied computer usage, unknown and falsified documents were placed in his file, and negative remarks were made about him to other employees. 4 We note that when the Agency failed to proffer a Prehearing Report containing a witness list, the AJ sanctioned the Agency by not allowing it to call any witnesses at the hearing. 5 We note that Complainant and the individual whose parking spot he parked in had worked the issue out amongst themselves prior to management's involvement. Agency policy encourages employees to seek resolution of small issues amongst themselves instead of getting management officials involved. It does not appear that management officials took this into consideration when they issued discipline to Complainant. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120072925 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 2 0120072925