[Redacted], Audrea L., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Mar 8, 2023

Appeal No. 2022000694 (E.E.O.C. Mar. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Audrea L.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2022000694 Agency No. DeCA-00080-2021 DECISION On November 18, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 16, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Lead Sales Store Checker, GS-2091-04, at the Agency’s Quantico Commissary in Quantico, Virginia. On June 7, 2021, Complainant filed a formal complaint alleging that the Agency discriminated against her because of on disability2 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. 2 Complainant identified her disabilities as trauma and stressor-related disorder, depression, ADHD, anxiety, and insomnia. 2022000694 2 a. In late 2018, the Supervisory Store Associate forced Complainant to use her annual leave (60 hours) when she initially took Family & Medical Leave Act (FMLA). b. In late 2018, after reporting the Supervisory Store Associate’s actions to the Store Administrator, the Supervisory Store Associate changed Complainant’s schedule after she had the same schedule for at least five years. c. Since late 2018 and continuing to the present, the Supervisory Store Associate directed employees to watch Complainant when she shops on her own time and pull the Complainant’s receipts after she leaves work. d. On November 11, 2020, the Supervisory Store Associate and Complainant’s supervisor called the military police and accused Complainant of stealing an unspecified amount of money greater than $500. e. On November 12, 2020, the Supervisory Store Associate would not allow Complainant to hang her work vest in the cash cage even though Complainant had done so previously prior to being accused of stealing. f. On November 13, 2020, the Supervisory Store Associate removed Complainant’s name from the cash access roster. g. On February 10, 2021, the Supervisory Store Associate called the military police and accused Complainant of stealing sushi and cookies. h. On March 2, 2021, the Supervisory Store Associate gave the Sales Store Checker the radio and instructed her to call her if anything was needed on the front end of the store, even though Complainant was the lead. i. On March 3, 2021, the Supervisory Store Associate asked the Teller what time Complainant reported to work. After an investigation into the complaint, the Agency provided Complainant a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on November 16, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established. The instant appeal followed. 2022000694 3 ANALYSIS AND FINDINGS 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 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). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. Claim a: Forced to Use Annual Leave for FMLA Complainant alleges that in late 2018, the Supervisory Store Associate, also her second line supervisor, forced her to use annual leave when she had instead requested FMLA. The Supervisory Store Associate stated she does not recall “forcing” Complainant to use annual leave instead of FMLA. However, the Supervisory Store Associate said the FMLA leave is unpaid leave once accrued sick leave is used up and she offered Complainant annual leave in lieu of leave without pay which Complainant agreed to for financial reasons. She said they also discussed the possibility of advanced sick leave, but Complainant did not want to pursue this option. 2022000694 4 Claim b: Changed Schedule The Supervisory Store Associate explained that in 2018 she changed Complainant’s work schedule due to operational needs. The Supervisory Store Associate said she needed Complainant to assist as a lead because there was no assistant supervisor available to work at that time. In addition, the Supervisory Store Associate asserted that she changed multiple employees’ schedules in 2018 due to rotating schedules. Claim c: Direction to Observe Complainant Shop and Review Receipts Complainant alleges that from late 2020 to present, three employees watched her shop, and that unnamed managers also monitored her checking out at the self-check register. The Supervisory Store Associate denied telling employees to watch Complainant and denies pulling Complainant’s receipts. Claim d: First Theft Accusation Complainant stated that on November 11, 2020, she overheard her first-line supervisor calling the Supervisory Store Associate to the cash office. Complainant left the conference room she was in and saw the supervisor and Supervisory Store Associate speaking with the military police. A military police officer escorted Complainant to a separate office and told her that money was missing from the safe. The military police asked Complainant if she knew anything about the missing money, and Complainant replied that she did not. The military police officer asked if he could search Complainant’s car, but she refused. The Supervisory Store Associate and the Store Director indicated that store policy requires contacting the military police if money is missing from the safe. The military police searched the cars of the Supervisory Store Associate and the first-line supervisor, but Complainant declined to have her car searched. At that time, they said no one was specifically accused of theft. The actions were taken to investigate the missing cash. Claim e: Prohibited from Placing Item in Cash Cage The Supervisory Store Associate stated after the theft incident, she removed the coat hook from the cash cage and prohibited all employees from bringing personal items into the cash cage. She said this applied to all employees, not just Complainant. The Supervisory Store Associate said she did verbally advise Complainant that she could not hang her work vest in the cash cage due to the ongoing investigation. Moreover, Complainant had a personal locker and so had no pressing reason to place her personal items inside the cash cage. 2022000694 5 Claim f: Removed from Cash Cage Access Roster Complainant claims that on November 13, 2020, the Supervisory Store Associate removed her name from the cash cage access roster. The Supervisory Store Associate explained she removed Complainant’s name from the cash cage because she needed Complainant to work the sales floor and lead the employees. She also removed other employees from the cash cage roster for training purposes. Claim g: Second Theft Accusation Complainant asserts that on February 10, 2021, she thought she left her drink in her car and went to check in the car, while carrying a plastic grocery bad that contained her inhaler and notebook. The Supervisory Store Associate stated that a named employee reported to her on that Complainant took a brown bag with sushi and cookies to her car. The Supervisory Store Associate called the military police who questioned Complainant about whether she had taken the sushi and cookies, which Complainant denied. The military police informed the Supervisory Store Associate that no action could be taken because there were no cameras to provide proof of theft. Claim h: Co-worker Given Lead Duties The Supervisory Store Associate stated that on March 2, 2021, she needed to attend a staffing meeting off the store floor. She could not locate Complainant on the radio or intercom, so she asked the Sales Store Checker to contact her if there was need for help while she attended the meeting. Claim i: Tracked Arrival Time The Supervisory Store Associate stated that on March 3, 2021, she noticed the Teller taking her lunch break while six customers waited in line at the checkout. She could not locate Complainant to assist at the checkout. The Supervisory Store Associate asked the Teller if she knew where Complainant was. For all nine claims, Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons proffered by management for the disputed actions were a pretext designed to mask discrimination. There is simply no evidence to support a finding that Complainant’s disabilities played any role whatsoever in the disputed matters. Moreover, for the same reason, the record also does not support a finding that the Agency engaged in discriminatory harassment. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2022000694 6 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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, a 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. 2022000694 7 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). 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 March 8, 2023 Date