Daisy W.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Oct 5, 2016

0120143215 (E.E.O.C. Oct. 5, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Daisy W.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 0120143215

Hearing No. 450-2013-00161X

Agency No. AAFES12048

DECISION

On September 18, 2014, Complainant filed an appeal from the Agency’s August 19, 2014,
final order concerning her 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a regular full-time
Motor Vehicle Operator (MVO) Foreman, HPP9-2, at the Agency’s Waco Distribution Center
(WADC) in Waco, Texas. On February 12, 2012, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of race (Native American), sex
(female), disability, and age (58) when:

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.
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1. On January 26, 2012, Complainant was written up for excessive sick leave
usage from January 7, 2011, to December 23, 2011;

2. In February 2012, Complainant’s remote access was taken away;

3. Sometime in March 2012, Complainant was not allowed to go outside on runs;
and

4. During the 2012 performance evaluation period, Complainant was requested to
show the approver evaluations prior to presenting an evaluation to an associate.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on August 7, 2014. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the case. For the reasons set
forth below, we find that this case does not present a genuine issue of material fact requiring a
hearing to be resolved.

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). She must generally establish a prima facie case by demonstrating that she
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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 where 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).

Claim #1 (Counseled Regarding Sick Leave)

The Agency explains that during the period in question, all of Complainant’s coworkers were
counseled regarding their sick leave usage. Complainant had a note placed in her personnel
record indicating that she had been informed that her sick leave usage had exceeded the
Agency’s 3% sick leave usage goal. According to the Agency, Complainant was not
disciplined for excessive sick leave usage. This is a legitimate, nondiscriminatory reason for
the Agency’s action. Complainant does not dispute the accuracy of the notation regarding sick
leave nor has she adduced any evidence that the Agency’s reason for its action is a pretext
designed to conceal discriminatory animus.

Claim #2 (Computer Remote Access Denied)

According to the Agency, Complainant’s ability to access her office computer remotely was
removed because Agency policy did not permit non-managers to have remote computer access.
Complainant had been granted remote access in a previous position in which she had
managerial responsibilities. That access was revoked after she moved to her current, non-
managerial position. This is a legitimate, nondiscriminatory reason for the Agency’s action.
Complainant has not adduced any evidence that the Agency’s reason for its action is a pretext
designed to conceal discriminatory animus.

Claim #3 (“Outside Runs” Denied)

The Agency states that Complainant was not assigned to make outside truck runs because
WADC was adequately staffed with motor vehicle operators. Truck runs by MVO foremen,
such as Complainant, were unnecessary. This is a legitimate, nondiscriminatory reason for the
Agency’s action. The only MVO foremen who did outside truck runs worked at locations
understaffed with motor vehicle operators. For that reason, they were not similarly situated to
Complainant. Complainant has not adduced any evidence that the Agency’s reason for its
action is a pretext designed to conceal discriminatory animus.

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Claim #4 (Approver Review of Evaluations Required)

The Agency explained that Complainant’s supervisor (S1) instituted a change in procedure for
the preparation of employee performance evaluations whereby Complainant was required to
submit proposed performance evaluations for S1’s approval before they were presented to
employees. The purpose of the change was to improve efficiency by avoiding disagreement
between Complainant and S1 after the evaluations had been presented to employees. This is a
legitimate, nondiscriminatory reason for the Agency’s action. Complainant has not adduced
any evidence that the Agency’s reason for its action is a pretext designed to conceal
discriminatory animus.

Hostile Workplace Harassment

Finally, insofar as Complainant contends that the incidents alleged constitute harassment based
upon her statutorily protected classes, the Commission finds that since she failed to refute the
legitimate, nondiscriminatory reasons proffered by the Agency for its actions, she also failed to
establish that such actions were taken on the basis of her membership in the protected classes.
Accordingly, Complainant failed to establish that she was subjected to a discriminatory hostile
work environment. See Bennett v. Department of the Navy, EEOC Request No. 05980746
(September 19, 2000).

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 order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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.
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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. The requests 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 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
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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 5, 2016
Date