0120132541
09-17-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120132541
Hearing No. 530-2011-00037X
Agency No. DECA-00084-2010
DECISION
Complainant filed an appeal from the Agency's June 6, 2013 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Store Associate Worker, GS-1101-04 at the Agency's Andrews Air Force Commissary facility in Andrews Air Force Base, Maryland.
Complainant made EEO contact in January 2009 on another matter. On April 15, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In August 2009, he was denied a promotion to full-time work;
2. Complainant was not paid under the wage grade pay system like his co-workers;
3. He was improperly reassigned to other departments in the commissary;
4. He was improperly trained under the Workforce of the Future Program; and
5. On or about February 23, 2010, his work schedule was changed without notice.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
The AJ held a hearing on October 12 - 13, 2011. During the hearing, the AJ heard from Complainant and the Agency witnesses. The pertinent record reveals the following facts:
Claim 1 Denied a promotion
The record at the hearing revealed that Complainant was hired by the Agency in 2007 as a GS-4 Store Associate. Complainant's position description and Standard Form 50 indicate that Complainant was under the pay plan of General Schedule (GS) and not as a Wage Grade employee. Complainant was assigned to the Produce Department and the Grocery Department.
On July 7, 2009, the Agency posted a job announcement for a Computer Assisted Ordering Clerk. Complainant applied, but he did not make the "Best Qualified" list. The Agency selected a female who was listed on the "Best Qualified" list.
Claim 2 Not paid under the wage grade scale
In August 2008, Complainant was temporarily assigned to work in the Meat Department under the Workforce of the Future Program. Most of the Meat Cutters are male, as is Complainant. The employees who were hired as Meat Cutters were paid on the wage grade scale. Complainant was not hired as a Meat Cutter or Meat Cutter Helper and was paid under the GS scale.
During the hearing, Complainant testified that since he was working as a Meat Cutter Helper in 2008, he should have been paid like other female Meat Cutter Helpers on the wage grade scale. The record did not show any other Store Associates who were paid under the wage grade scale.
Claim 3 Improperly reassigned to other departments
All of the Store Associates, male or female, participated in the Workforce of the Future Training Program, at the Commissary. The Workforce of the Future Training Program prepared employees to be able to work in all of the departments. The store regularly rotated assignments, with certain exceptions. Employees hired into the Meat Department were not rotated due to their specialized knowledge and the need for them to remain in the Meat Department.
Claim 4 Improperly trained
Complainant began his training in the Produce Department, but he did not complete his training. Complainant testified that the Agency had improperly trained him. The Agency did not dispute this point, but the Agency presented evidence that Complainant was treated no differently than other employees.
Claim 5 Work schedule changed without notice
Complainant worked in the Meat Department from August 2008 to February 23, 2010.
The evidence showed that a number of the people who were not rotated out of their positions were female. Two women were made permanent full time employees to assist with the ordering accountability that was needed at the Commissary. They had been encumbering the slots that were converted to permanent positions.
The record also shows that the Store rotated men and women and changed their assignments without prior notice. In February of 2010, Complainant was transferred to work at the "Front End" of the Commissary. Complainant did not show that he was treated differently because of his gender or prior EEO activity.
The Agency offered evidence through its managers that the decisions were motivated by the operational needs of the Agency.
AJ Decision
The AJ issued a decision on May 22, 2013. The AJ found that "at no point was Complainant hired to be paid through the wage grade scale, nor was he hired to work as a Meat Cutter or Meat Cutter Helper."
The AJ also found that Complainant was not the only employee whose work schedule was changed without notice. The AJ also found that "Complainant has not disputed that he was not treated differently from female employees who had not engaged in prior EEO activity in the schedule change."
With regard to the denial of promotion, the AJ found that the Agency did not consider him for promotion because he did not make the Best Qualified List. The AJ found that, rather than discrimination, the "Agency's failure to complete the necessary training [for Complainant] in the Produce Department instead smacks of disorganization" and that Complainant has not shown that he was discriminated against when the Agency did not complete his training in the Produce Department."
With regard to the fact that Complainant was not able to compete for the opportunity for full-time work that was provided to two women, the AJ found that the women already occupied the slots. The AJ reasoned, "while the process may not have been fair, Complainant did not demonstrate the manner in which the decision to make [the named] full-time employees [was] intentionally discriminatory towards him." The AJ concluded that Complainant failed to prove, by a preponderance of the evidence that the Agency unlawfully discriminated against him.
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.
On appeal, Complainant submitted new evidence, arguing that certain facts were "omitted or misrepresented by AJ and or by the Agency." Complainant attached an Unemployment Insurance Appeals Decision, issued by the Maryland Department of Labor, dated February 29, 2012. Complainant offered the decision as evidence that the Agency's decision to terminate him, effective June 10, 2011, due to his absenteeism, should be overturned. These claims are not before us on appeal. We also note that the hearing in this case was held prior to the issuance of the state's decision. Therefore, it was not before the judge. In addition, the issue of wrongful termination was not presented in this case.
The Agency did not file a brief in opposition to the 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. (Aug. 5, 2015).
Disparate Treatment / Sex & Reprisal
Section 717 of Title VII states that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination."
To prevail in a disparate treatment claim, Complainant must establish that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
For purposes of our analysis, we will presume that Complainant established his prima facie claims with regard to his sex and reprisal claims because there is evidence that female employees were accorded opportunities denied to Complainant. However, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 (1983).
The AJ found that the Agency articulated legitimate reasons. The AJ found that Complainant was denied a promotion because he was not on the Best Qualified list and because his application was not referred to the decision makers. He was not paid under the wage grade because he was not a wage grade employee. The AJ found that the Agency rotated its Associates for business reasons and made its decisions with regard to assignments based on its operational needs. To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
We find that Complainant failed to show that the stated reasons were untrue or a pretext.
In this case, Complainant did not provide any evidence that would provide a basis to overturn the AJ's findings and conclusions of law. There was no evidence that Complainant had been singled out for any disparate treatment because of his sex or prior EEO activity. The AJ found no discrimination based on the facts and her legal conclusion is entitled to deference because it is supported by substantial evidence.
After a careful review of the record, we agree with the conclusion of the AJ that Complainant did not show by a preponderance of the evidence that he was discriminated against because of his sex or reprisal.
CONCLUSION
Accordingly, for the reasons listed above, we AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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, 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 (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 Complainants 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
September 17, 2015
__________________
Date
1 On June 9, 2010, Complainant requested to amend his complaint to add the allegation that on or about April 14, 2010, he was not selected for the position of Commissary Contract Monitor, GS-1101-05, due to his sex and reprisal.
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