Lenny W.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Apr 20, 2018

0120160819 (E.E.O.C. Apr. 20, 2018)

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

Lenny W.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 0120160819

Agency No. 15.027

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated November 2, 2015, finding no
discrimination concerning his 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. For the
following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Shift Supervisor
(Gas), Hourly Pay Plan (HPP) 2-1, at the Agency’s Molesworth Express Gas facility, United
Kingdom Consolidated Exchange, United Kingdom. On January 12, 2015, Complainant filed his
complaint alleging discrimination in reprisal for prior EEO activity when on November 15, 2014,
his manager (M1) changed his work schedule from eight hours on Saturday and Sunday to five
hours. After completion of the investigation of the complaint, Complainant requested a final
Agency decision without an EEOC Administrative Judge (AJ) hearing. The Agency issued its
final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its

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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action, which Complainant failed to rebut. Complainant appeals from the Agency’s final
decision.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incident. At the relevant time, Complainant was employed by the Agency
as a Shift Supervisor at the Molesworth Express Gas store in United Kingdom.

The Agency noted that on Saturdays and Sundays, only a shift supervisor (without any other
employees/cashiers) was scheduled to work the entire shift due to reduced customer traffic and
sales in the store. The shift supervisor would take his/her lunch in the store and would not close
the store. M1, who became Complainant’s manager in April 2014, indicated that he too worked
during the weekends and had his lunch in the front of the store.

Specifically, M1 indicated that previously he was informed by Human Resources Office (HRO)
that Complainant filed a claim to be paid for the lunch he did not receive plus 20-minutes
administrative leave for not being able to take a lunch. Complainant acknowledged that he filed
the claim concerning his lunch break pay from September 2012, to September 2014, on
September 29, 2014. We note that this matter is not at issue. M1 stated that at the relevant time,
HRO informed M1 about Complainant’s claim and how he could handle the issue by giving his
shift supervisors, including Complainant, a lunch and paying them correctly for their time.

M1 stated that at the relevant time, he talked with his supervisor who recommended the best
course of action would be to have two supervisors work a 5-hour shift on the weekend; thereby
no lunch time would be required. M1 changed the hours on the weekends as recommended by
his supervisor where one shift supervisor would work from 8:00am – 1pm and another shift
supervisor would work from 11:30am – 4:30pm. M1 stated that at that time, he was not aware of
Complainant’s EEO activities. M1 also indicated that all shift supervisors, including
Complainant, were given the 5-hour rotation on the weekends.

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After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, we find that
Complainant failed to show that there were any similarly situated employees not in his protected
groups who were treated differently under similar circumstances. Based on the foregoing, we
find that Complainant has failed to show that the Agency’s action was motivated by
discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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).

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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

April 20, 2018
Date