U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ward B.,1 Complainant, v. Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency. Appeal No. 0120151448 Hearing No. 420-2013-00242X Agency No. ARCEMOBIL12JUL03098 DECISION On March 13, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's January 29, 2015, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUE PRESENTED The issue presented is whether Complainant has established by a preponderance of the evidence in the record that he was subjected to discrimination based on race, disability, and/or reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deckhand aboard the Agency's Motor Vessel Lawson in the Agency's Mobile, Alabama District. Complainant's first-level supervisor was the Captain of the Lawson (S1), his second-level supervisor was an Assistant Operations Manager (S2), his third-level supervisor was an Operations Manager (S3), and his fourth-level supervisor was the Chief of the Operations Division (S4). Complainant injured his right knee on the job on March 25, 2010, and he was out of work because of his injury until March 2012. Complainant stated that he has been diagnosed with degeneration of the meniscus and chondromalacia of the patella. In March 2012, Complainant's physician returned him to full duty with no restrictions. The physician who conducted Complainant's annual Agency physical examination in June 2012 also indicated that Complainant could fully perform all of his required job duties with no restrictions. Complainant stated that, even after returning to work, his knee impairment limits his mobility because it is hard to stand for long periods of time and because it swells, causing pain. According to Complainant, he also has depression, anxiety, and insomnia. Complainant is Black and African-American. Complainant averred that, prior to contacting an EEO Counselor to initiate the instant complaint, he had previously contacted an EEO Counselor regarding different allegations. Complainant returned to work on March 12, 2012. On March 12, 2012, Complainant asked S1 to send a letter to the Mobile District Commander (S5). In the letter, Complainant requested reassignment and to meet with S5 because he had been told that he did not know the chain of command, that he had been refused assistance, that he had been laughed at, and that he had been instructed to return to work while under a doctor's care. According to Complainant's letter, he felt he was being subjected to a hostile work environment. Complainant also generally averred that he also felt that the Motor Vessel Lawson was unsafe. On March 26, 2012, S5 appointed a Lieutenant Colonel (S6) to investigate Complainant's claims. S6 interviewed the employees of the Motor Vessel Lawson. According to the record, Complainant declined to speak with S6 as part of the investigation. At the conclusion of the investigation, S6 found no evidence of a hostile work environment but recommended that Complainant be reassigned. S2 stated that, as a result of S6's recommendation, he offered Complainant a position at the Selden Lock and Dam in Eutaw, Alabama, but that Complainant declined the offer. Complainant alleged that in April 2012, the Pilot of the Motor Vessel Lawson (P1) and the Cook (C1) verbally abused him by periodically calling him a "whiner," a "crybaby," and using other similar code names for Complainant over the radio. P1 denied calling Complainant a crybaby or other derogatory names. On July 30, 2012, S3 issued Complainant a written warning for insubordination and for being absent without leave (AWOL) when he did not report to work after his request for leave without pay (LWOP) had been denied. The warning also noted that Complainant was using an excessive amount of sick leave and using leave as soon as he accrued it. According to S1, he notified the crew several weeks in advance at weekly Monday meetings that on September 19, 2012, the Motor Vessel would be drydocked for two weeks. Complainant stated that he was not notified ahead of time that the vessel was deploying and would be drydocked on September 19, 2012. Complainant did not have his government travel card with him for the deployment. According to Complainant, he was directed by S1 to stay in filthy quarters on the crane barge while his coworkers slept in a hotel. S1 stated that Complainant agreed to stay on the crane barge. S1 averred that the crane barge had electricity, showers, restrooms, bunkrooms, and food and denied that the quarters were filthy. Complainant alleged that on October 18, 2012, he found out that a coworker (C2, Black and African-American) was permitted to stay in the hotel during this deployment even though C2 did not have an Agency travel card at the time. According to S1, C2 was a new Agency employee and did not yet have an Agency travel card. S1 averred that he put C2's hotel reservation on his personal credit card and sought reimbursement. On November 15, 2012, Complainant sent a letter to S5 stating that, despite his requests, he had not been allowed to have a meeting with S5. On November 30, 2012, S4 responded to Complainant's letter, noting that Complainant had refused to participate in S6's investigation, which had been prompted by his March letter to S6. S4 stated that Complainant could meet with S5 if he provided a list outlining the specific issues that he wanted to discuss. According to the record, on November 19, 2012, Complainant requested four hours of leave for November 21, 2012, and S1 approved the request. S1 made arrangements so that Complainant could disembark for his leave. On November 21, 2012, Complainant told S1 that he did not want to take leave after all. On the afternoon of November 21, 2012, Complainant asked to meet with S1. S1 stated that P1 attended the meeting and that Complainant asked to record the meeting but P1 did not give permission to make the recording. According to S1, as P1 was leaving the room, Complainant said that P1 was a "little man with a lot of bluff." S1 averred that P1 turned around and asked what Complainant said and that Complainant repeated the statement. According to S1, Complainant subsequently demanded to get off the boat. On November 26, 2012, S2 recommended to S4 that Complainant be suspended for one day for discourtesy for the events of November 21, 2012. Complainant was out of work between November 26, 2012, and December 14, 2012. Complainant's balance of six hours of annual leave and four hours of sick leave was applied to his November 26, 2012, absence, and he was placed on LWOP between November 27 and December 14, 2017. On December 17, 2012, S1 asked Complainant to submit his time, and Complainant told S1 that his time was "messed up" because he did not request leave for November 26, 2012. On December 19, 2012, S1 restored the ten hours of leave to Complainant. According to S1, despite several requests, Complainant never submitted his time for the pay period that included November 26, 2012. On December 10, 2012, Complainant was notified that his government travel card had a past due balance. According to S2, upon review of Complainant's government travel card statements, he discovered that Complainant had used the card for unauthorized purposes. On December 19, 2012, S2 recommended to S4 that Complainant be suspended for an additional four days for misuse of his government travel card, delinquency in payment of the debt, and abuse of sick leave. Complainant averred that on the Motor Vessel Lawson he was forced to complete duties that his coworkers were not. For example, Complainant stated that on January 8, 2013, P1 asked him to remove groceries from a personal vehicle. According to P1, the groceries in question were the groceries for the crew's meals. S1 denied that Complainant was forced to complete duties that his coworkers were not. S4 stated that after Complainant complained that he was being singled out for tasks, he discovered that the complained of tasks were housekeeping duties that were part of Complainant's position description and were shared equally by all Deckhands. On January 10, 2013, S3 issued Complainant a leave restriction letter based on his excessive use of leave. According to Complainant, his use of leave should not have been a problem because management approved all of his leave requests. On January 10, 2013, S4 issued a proposal to suspend Complainant for 14 days for several incidents of disruptive behavior as well as misuse of a government travel card. In the proposal, S4 cited the following incidents to support the charge of disruptive behavior: Complainant frequently took unscheduled leave on the last day of the work week, which disrupted the crew; the events of November 21, 2012; and Complainant's failure to submit his time in December 2012. Regarding the travel card, S4 noted that Complainant's travel card had a past due balance and that Complainant used the travel card for unauthorized personal use on six occasions between September 28, 2012, and October 18, 2012. According to S4, he proposed suspending Complainant because he admitted to using the government travel card for personal purchases, was disrespectful to P1, and was insubordinate by refusing to sign his time in December 2012. On January 25, 2013, Complainant submitted a written response to the proposed suspension. In his written response, Complainant admitted that he had misused his government travel card. Complainant stated that any behavior that may have constituted insubordination was justified because of the way he was being treated about the Motor Vessel Lawson. Complainant averred that he does not think he has ever been insubordinate in the workplace. On February 7, 2013, the Deputy Commander of the Mobile District (S7) issued a decision to suspend Complainant for 14 days for disruptive behavior and for misuse of government travel card. Complainant was suspended effective February 17, 2013. On September 18, 2012, Complainant filed an EEO complaint, which he subsequently amended, alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), disability (physical and mental), and reprisal for prior protected EEO activity when: 1. He was asked to perform duties not required of other employees and was asked to take groceries out of a personal vehicle on January 8, 2013; 2. In April 2012, he was verbally harassed when he was called a whiner and crybaby and referred to by "code names"; 3. Between March and December 2012, he was placed in an unsafe environment when he was required to work alone; 4. He was not informed of a scheduled deployment on September 19, 2012; 5. He had to stay on board the crane barge in "filthy" living quarters during the deployment and learned on October 18, 2012, that management paid for a hotel room for another employee who, like Complainant, did not have his government travel card with him; 6. On January 10, 2013, management issued him a leave restriction letter for abusing leave; 7. On January 10, 2013, management issued him a proposed suspension for abuse of his government travel card and for disruptive behavior; 8. On February 7, 2013, management decided to suspend him for 14 days; and 9. He was suspended for 14 days effective February 17, 2013, with a return to work date of March 3, 2013. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that Complainant had waived his right to a hearing by failing to comply with the AJ's orders. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant makes no contentions on appeal. In response to Complainant's appeal, the Agency contends that its final decision should be affirmed because Complainant failed to produce any evidence to support his claims. 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. (Aug. 5, 2015) (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"). As a preliminary matter, we address the AJ's decision to dismiss Complainant's hearing request as a sanction. An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. § 1614.109(f)(3). The sanctions available to an AJ for failure to provide requested relevant information include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. Here, Complainant and his attorney were on notice that a failure to comply with the AJ's orders could result in sanctions, including dismissal of his hearing request, yet Complainant failed to comply with the AJ's orders to submit an itemized list of damages, to produce evidence relating to his claim for compensatory damages, to submit a list of witnesses, and to submit a list of the facts that warranted the issuance of a decision in his favor. In the instant case, we do not find that it was an abuse of discretion for the AJ to dismiss Complainant's hearing request. Disparate Treatment 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 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. 13, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant alleged that he was subjected to discrimination when he had to stay on a crane barge while his coworkers, including C2, stayed at a hotel. The Agency has provided legitimate, nondiscriminatory reasons for it actions. Specifically, Complainant did not have his government travel card despite weeks of notice that the vessel was deploying, and he agreed to stay on the crane barge. With respect to C2, the Agency indicated that C2 was a new employee who had not yet received a government travel card. The preponderance of the evidence in the record does not establish that the Agency's proffered reasons are pretextual. Complainant also alleged that he was discriminated against when he was issued a leave restriction letter. The Agency's legitimate, nondiscriminatory reasons for issuing the letter were that Complainant's last-minute leave requests were disruptive to vessel operations and that Complainant, despite being warned, continue to use his leave as soon as he accrued it. We find that Complainant has failed to establish by a preponderance of the evidence that the Agency's legitimate, nondiscriminatory reasons are a pretext designed to mask discriminatory animus. Finally, Complainant alleged that he was subjected to discrimination when he was suspended for 14 days. The Agency's legitimate, nondiscriminatory reasons for issuing the suspension were that Complainant had acted in a disruptive manner on several occasions and that he had misused his government travel card. Complainant admitted that he misused his government travel card. Complainant has not established by a preponderance of the evidence in the record that the Agency's legitimate, nondiscriminatory reasons are pretext for discrimination or retaliation. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Here, there is no evident connection between the alleged instances of harassment and Complainant's race, color, disability, or prior protected activity. Moreover, Complainant has failed to establish that the assignment of routine tasks such as cleaning the deck or picking up groceries for the crew were sufficiently severe or pervasive to create a hostile work environment. Accordingly, Complainant has failed to establish by a preponderance of the evidence in the record that he was subjected to a hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision because the preponderance of the evidence in the record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 11-22-2017 __________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151448 2 0120151448