EEOC Appeal 2020001807

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kenneth M.,1
Complainant,
v.
James E. McPherson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 2020001807
Agency No. 19-40085-00287
DECISION
On December 23, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 15, 2019 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Supervisor, WS-4701-10, at the Agency’s Naval Facility (NAVFAC), Engineering Command,
Mid-Atlantic in Norfolk, Virginia.
On December 10, 2018, Complainant filed the instant formal complaint. 	Complainant claimed
that the Agency discriminated against him on the bases of race (African-American), color (Black),
age (over 40), and in reprisal for prior EEO activity when:2
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 For ease of reference, the Commission has re-numbered Complainant’s claims as claims 1-3.

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1. 	on February 21, 2018, his second-line supervisor removed his authority to authorize
overtime and act as a Duty Supervisor;3
2. 	from February 2018 through July 2018, the first-line supervisor constantly asked him
in a patronizing tone “when are you going to retire?” and “why don’t you just retire?”;
and
3. 	on August 3, 2018, his second-line supervisor placed him on Administrative Leave
Following an investigation, Complainant initially requested a hearing before an Administrative
Judge. However, Complainant subsequently withdrew that request. Therefore, on October 15,
2019, the Agency issued its final decision based on the evidence developed during its investigation
of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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, non-discriminatory reason for its actions. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary's Honor Center
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, as
here, 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. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
3 Regarding claim 1, the Agency noted that Complainant “expanded his [original] claim” to address
the events of February 21, 2018. 	In the Agency’s analysis, the Agency captioned claim 1 as
“February 21, 2018 Events (Background Only-Not Included in Accepted Claim)”. The Agency
nevertheless proceeds to address claim 1 in detail, as we have done so in the instant decision.

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Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
During the investigation, the responsible management officials articulated legitimate, non-
discriminatory reasons for the disputed actions.
Regarding claim 1, Complainant asserted that on February 21, 2018, his second-line supervisor
removed his authority to authorize overtime and act as a Duty Supervisor.
The Production Division Director (Director) (Caucasian, white, over 40) stated that during the
relevant period he was Complainant’s second-line supervisor. He stated that he removed
Complainant’s authority to authorize overtime because there was a Naval Criminal Investigative
Service (NCIS) criminal investigation in Complainant’s work center concerning four individuals.
Specifically, he stated at that time, “it was early on in the investigation. Complainant’s signature
was on the Material Requisitions Invoice (MRIs-it’s an old term); they were signed by him.” The
Director stated he also took privileges away from three mechanics under Complainant’s
supervision who were alleged to be involved and “this was not something I did just Complainant.
Pending the result of the investigation, I explained to him that he was not to approve the MRIs
until further notice.”
The Director further stated that Complainant did not get the authority to authorize overtime back
because he went out on administrative leave for a different reason so he has not been to the work
site.
With respect to Complainant’s overtime issue in Claim 1, the Director stated he required per
Agency policy, that his employees needed his approval prior to working overtime. Complainant
asserted, however, “I had to go to [the Director] and then he would approve it or not. This was
harassment and retaliation to the point where I would want to leave. That’s what they do to black
folks.”
The Director, however, denied any discriminatory motivation asserting, “I did it for the reasons I
already described above. 	I never did it because of his race. 	I removed his ability to authorize
overtime and act as a duty supervisor because there was an active NCIS investigation. I did the
same thing to the three employees who worked under him. Two were white and one was Hispanic.
It was a serious and active investigation. It has nothing to do with race.”
The Maintenance Superintendent, Facilities (Caucasian, white, over 40), also Complainant’s first-
line supervisor, asserted that he did not have the authority to remove Complainant’s authority to
authorize overtime. 	He noted that the Director removed Complainant’s authority to authorize
overtime due to an ongoing investigation in his work center.

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Regarding claim 2, Complainant alleged that from February 2018 through July 2018, the second-
line supervisor constantly asked him in a patronizing tone “when are you going to retire?” and
“why don’t you just retire?” The supervisor acknowledged he may have asked Complainant when
he was planning to retire because he was planning to retire in December. He further stated that
Complainant asked him, “if I was going to retire at times. I ask him why he asked me, he said he
wants my job.”
Regarding claim 3, Complainant asserted that on August 3, 2018, his second-line supervisor placed
him on Administrative Leave.
The Deputy Public Works Officer (mixed race, white, over 40), also Complainant’s third-line
supervisor, acknowledged signing the letter placing Complainant on administrative leave on
August 3, 2018, for making a statement to an EEO Counselor about taking the Director to dinner
and “chopping him up.” 	He noted that there was a prior incident in March 2018 involving
Complainant making a threatening comment in the nature of everyone going out in “body bags.”
The Deputy stated that in order to promote a safe environment for all employees “the Command
placed [Complainant] on an Administrative Leave pending a command investigation.”
The Deputy further stated that pending the investigation, Complainant was required to remain
available by phone during regular scheduled hours and call into work daily to the Director between
6:30 and 7:00 a.m. during the administrative leave period. 	Complainant was paid while on
administrative leave. Moreover, the Deputy noted that during the investigation of Complainant’s
inappropriate comment to the EEO Counselor, the investigation revealed a separate misconduct
issue resulting in Complainant continuing to remain on administrative leave.
The Director acknowledged issuing the Notice (final decision making authority) placing
Complainant on administrative leave and that the Deputy was the one who signed the letter. He
noted that Complainant “wanted to take the supervisor to the Outback Steakhouse and cut him into
pieces. We took this threatening statement very seriously.”
Once the responsible Agency officials have articulated legitimate, non-discriminatory reasons for
the disputed actions, the burden shifts to Complainant to prove, by a preponderance of the
evidence, that these reasons are pretext for discrimination. Here, Complainant has simply provided
no evidence to support his claim that his treatment was the result of his race, color, age or prior
EEO activity. Moreover, a case of harassment is precluded based on our findings that Complainant
failed to establish that any of the actions taken by the Agency were motivated by his protected
bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of
the request. 	Any supporting documentation must be submitted together with the 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).

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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
October 13, 2020
Date