0120142486
10-19-2016
Eleni M.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eleni M.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120142486
Agency Nos. AAFES-12.060, AAFES-13.001
DECISION
On June 19, 2014, Complainant filed an appeal from the Agency's May 20, 2014, final decision 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected her to harassment on the bases of race (African-American), sex (female), age (56), and reprisal for prior protected EEO activity (December 2011 participation in a class complaint) in connection with the conduct of her first-level supervisor from March 2012 to January 2013.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Store Manager for the Branch Express at the Agency's Barksdale Air Force Base Exchange in Louisiana. Beginning in June 2010, Complainant's first-level supervisor was the General Manager (S1 - Hispanic, male, 54).2 Complainant's second-level supervisor was the Area Manager (S2 - Caucasian, female, 40).
Complainant filed EEO complaints alleging that the Agency subjected her to harassment on the bases of race (African-American), sex (female), age (56), and reprisal for prior protected EEO activity (December 2011 participation in a class complaint). According to Complainant, the harassment began in March 2012 and consisted of the following incidents:3
1. S1 conducted walk-throughs with her subordinate managers (usually the Caucasian Stockroom Manager instead of the African-American Shift Manager) twice a month on Mondays, her day off. When she asked him to conduct walk-throughs on another day, he said that he could not wait for her to come in on Tuesdays and had a right to conduct walk-throughs when convenient for him. She felt that he bypassed her and undermined her authority by conducting walk-throughs on her day off. When she asked him why he conducted walk-throughs with the Stockroom Manager instead of the Shift Manager, he said that the Shift Manager was often busy so he just went with whoever was available. She felt that he should have told the Stockroom Manager to do what the Shift Manager was doing so the Shift manager would be available.
2. When she said something at the store or at staff meetings that S1 did not like, he cut her off in mid-sentence and made a hand gesture "like he was swatting a fly." She felt that he always dismissed or "knocked down" her opinions.
3. S1 asked her to set up a vendor non-delivery binder for merchandise not received and to review the items listed in the "flag item" reports prepared by another employee. She felt that the tasks were redundant because the store already had a bulletin board showing daily deliveries and the "flag item" reports were the other employee's responsibility.
4. S1 made the following comments to her: "You call yourself a seasoned manager" and "Well if I was a manager and my PMO [Primary Management Official] told me to do something . . . I would do it." Complainant felt that his comments were condescending because they implied that she did not know what she was doing and was not a team player.
5. On April 6, May 2, June 8, and June 21, 2012, S1 issued her written counseling on her performance deficiencies related to store merchandise and store appearance. She felt that the counseling was unfair because he did not provide her with adequate staff to keep items stocked.
6. On July 20, 2012, 10 minutes before she left for a medical appointment she had previously told S1 about, he conducted a walk-through with her, criticized the store appearance within earshot of a vendor, and said, "If the PMO tells you to do something, I would do it right away." When she asked him if he forgot about her appointment, he said yes. Complainant felt that he was "trying to find something to start something" and was belittling her.
7. On August 10, 2012, S1 issued her a 90-day performance improvement plan (PIP) with weekly meetings. Specifically, S1 identified four areas for improvement: (a) following his instructions to set up a vendor non-delivery binder for merchandise not received; (b) following his instructions to adjust the cashier and manager schedules for peak periods; (c) prioritizing her responsibilities as the store manager to complete a daily walk-through of the stockroom and sales floor; and (d) taking the initiative to implement processes and systems to ensure that the store stayed in stock of merchandise. On September 28, 2012, S1 reissued the PIP. Specifically, S1 stated that he found it necessary to restart the PIP to accurately assess her performance because they had missed five of the six weekly meetings thus far. The PIP concluded on December 12, 2012.
8. On January 14, 2013, S1 issued her an advance notice of separation for unsatisfactory performance of items (c) and (d) during the PIP period.4 Regarding (c), S1 stated that she failed to provide her daily walk-through notes on six occasions. Regarding (d), S1 stated that she did not confirm review of the "flag item" reports, which resulted in repeated items being out of stock.
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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In its final decision, the Agency concluded that Complainant did not prove that it subjected her to harassment as alleged. Specifically, the Agency found that Complainant did not show that S1's conduct was based on her race, sex, age, or prior protected EEO activity; management articulated legitimate, nondiscriminatory reasons for S1's conduct and Complainant provided no objective evidence or convincing argument to show that management's reasons were unworthy of belief.
CONTENTIONS ON APPEAL
On appeal,5 Complainant contends that S1's demeanor towards her changed after she informed him in December 2011 about her participation in a class complaint. Among other things, Complainant argues that S1 began fabricating her performance issues; he previously gave her satisfactory performance ratings (for the February 2010-January 2011 and February 2011-January 2012 rating periods), which contradicted his subsequent accusations of poor performance. In addition, Complainant argues that S1 began micromanaging the store, which negatively impacted the effective operation of the store. Complainant characterized S1's behavior as "throw[ing] the rock then hid[ing] your hands." For example, Complainant asserts that S1 refused to fill vacant positions, which caused her to not have adequate staff, and micromanaged the paperwork, which created major time constraints.
STANDARD OF REVIEW
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 (EEO MD-110), at 9-16 (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").
ANALYSIS AND FINDINGS
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class or engaged in prior protected EEO activity; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class or prior protected EEO activity; (3) the harassment complained of was based on their statutorily protected class or prior protected EEO activity; (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/or was sufficiently material to deter protected EEO activity in the given context; and (5) there is a basis for imputing liability to the employer. See generally Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, � II.B.3 (Aug. 25, 2016).
Upon review of the record, we find that Complainant did not establish a claim of harassment. Specifically, the evidence in the record is insufficient to support a finding that S1's conduct was based on Complainant's race, sex, age, or prior protected EEO activity.
Instead, the record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Regarding incidents 1, 3, 5, 7, and 8, the Agency provided nondiscriminatory explanations for S1's conduct. As to incident 1, S2 averred that General Managers could conduct walk-throughs any day of the week, Mondays were a regular day to conduct walk-throughs to see how the facilities "bounced back" from the weekend, and S1 conducted walk-throughs of the other facilities (the Main Store, the Food Court, the Military Clothing Store, the Small Express) on Mondays. As to incident 3, S2 averred that there was a "disconnect" between Complainant and S1 about whether the tasks were warranted; Complainant did not think they were important but S1 did. As to incidents 5, 7, and 8, S1 described Complainant's performance deficiencies in the written counseling, the PIP, and the advance notice of separation. Regarding incidents 2, 4, and 6, assuming that they occurred as alleged, there is no indication that they were related to Complainant's protected classes.
Although Complainant argues on appeal that S1's conduct was based on her race, sex, age, and prior protected EEO activity, we find the evidence does not show that it is more likely than not that S1 had a discriminatory motive. First, we find it unlikely that S1 held any discriminatory animus against Complainant based on her race, sex, or age. Specifically, S1 began supervising Complainant in June 2010 and was aware of her race, sex, and age, yet Complainant did not allege any discriminatory acts by S1 from June 2010 to February 2012. Second, we find it unlikely that S1 held any discriminatory animus against Complainant after she informed him in December 2011 about her participation in a class complaint. Specifically, S1 had the opportunity to engage in retaliatory acts immediately as Complainant's direct supervisor, but instead gave her a satisfactory performance rating on April 27, 2012 for the February 2011-January 2012 rating period (a performance rating that was unchanged from the previous rating period). In addition, we find that S1's positive view of Complainant's performance during an earlier time period does not show that his negative view of Complainant's performance during a later time period was unwarranted. Moreover, we find that Complainant's mere disagreement with S1's management style is not evidence of retaliatory intent.
Had Complainant requested a hearing before an Administrative Judge, the Administrative Judge could have made credibility determinations based on witness testimony. See generally EEO MD-110, at Ch. 7. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that S1's conduct was based on her race, sex, age, or prior protected EEO activity.
CONCLUSION
Complainant did not establish that the Agency subjected her to harassment on the bases of race, sex, age, or reprisal for prior protected EEO activity in connection with the conduct of her first-level supervisor from March 2012 to January 2013. Therefore, 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 finding no discrimination.
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.
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 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
__10/19/16________________
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 S1 had retired by the time of the EEO investigation. The EEO Investigator contacted S1, but he did not provide any affidavit testimony.
3 For purposes of clarity, we have renumbered and rephrased the incidents based on Complainant's affidavit testimony and the documentary evidence in the record.
4 On February 19, 2013, S1 withdrew the notice. A Human Resources Manager averred that an Agency attorney advised management to withdraw the notice because the PIP exceeded the 90-day PIP period, there was no written agreement to extend the 90-day PIP period, and "on a technicality it could have gone against the [A]gency."
5 Complainant, on appeal, discusses other incidents of alleged discrimination that occurred after January 2013. We emphasize that those incidents are outside the scope of the instant complaint and we decline to address them on appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120142486
2
0120142486