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

Equal Employment Opportunity Commission

Mar 29, 2022

Appeal No. 2021002520 (E.E.O.C. Mar. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 David R.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021002520 Hearing No. 443-2020-00044X Agency No. DeCA-00129-2019 DECISION Complainant timely filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 26, 2021 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Evaluator, GS-1101-05, at the Agency’s Grand Forks Commissary in Grand Forks, North Dakota. On May 29, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability2 and reprisal for prior protected EEO activity when, on April 23, 2019, he was terminated during his probationary period from his position at Grand Forks Air Force Base Commissary. 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 In his complaint, Complainant asserted he was a disabled veteran who experienced anxiety, depression and a mood disorder as a result of his military service. 2021002520 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. The evidence of record shows that Complainant was initially hired on May 14, 2017 to a 2-year probationary term and he began work at the Ord Commissary in California. Complainant initially had good performance reviews while working at the Ord Commissary. However, after transferring to the Grand Forks Commissary on February 5, 2019, Complainant exhibited a number of performance and conduct issues. One employee made repeated complaints about Complainant making her feel uncomfortable due to his comments and actions. On one occasion, the Grocery Manager emailed Complainant’s supervisor regarding watching Complainant follow that employee around in an effort to intimidate her. Complainant’s supervisor indicated that Human Resources mandated that a supervisor must be on duty when Complainant was working. Two people felt Complainant was demeaning towards people with a disability. There were complaints that Complainant had improper item counts and that he marked items as not in stock if he could not find them when the items were actually on the shelves. The Grocery Manager found Complainant was pre-filling out his reports. 2021002520 3 He brought her a Contract Surveillance checklist for a day the store was closed due to a storm, and another day he brought her checklist before the contractors had even started working. On three different occasions, Complainant had to be told to stop cleaning the store (which was not his job) and to do his job instead. Complainant also had several issues concerning store security and his security card. He lost his CAC card three times. Twice it was found in the computer where he had last been working. Once it was never found. On one occasion Complainant opened the warehouse overhead door for a contractor and then left it open and unsecured for almost three hours. He manipulated the administrative settings on an office computer to display a picture of the Ord Commissary staff (which required IT to remove). He admitted to having a recording device in the store and recording things. As a result of the foregoing, Complainant was issued a Letter of Warning on March 26, 2019. However, his performance and conduct issues continued. He was late to work one day. He told a contractor to get down on his knees and clean up water. On one occasion, he pulled entire categories of product off the shelves if one item was not properly rotated. As a result, the contractors had a supervisor stay with their custodians if Complainant was around. He made an odd comment about guns to the Grocery Manager, and on another date he pretended to pull a gun from his pocket, load and cock it, point it at the back of the store, and wave it around in circles. He improperly completed a cover sheet. He twice failed to check water fountains on his walk though and on one occasion he also failed to note the front entrance which was full of leaves. He disobeyed directions to leave the QAE office door open. He failed to complete random checks for a contract. He commented to the Grocery Manager that he needed to get a doctor’s note that he was insane. As a result of the myriad conduct and performance issues, Complainant was terminated during his probationary period. The termination notice lists both conduct and performance issues for which Complainant was being terminated and states the because Complainant “demonstrated [he is] unable to meet the minimum standards expected of a new employee, [the Agency] decided to terminate [his] appointment during [his] probationary period.” (Investigative File, p. 95). Although Complainant disputes some of the foregoing events and argues that management was essentially nitpicking his performance, he does not dispute all of these events. Complainant argues on appeal that there was direct evidence of discriminatory bias on the part of the supervisor who fired Complainant, and that the AJ erred in failing to address Complainant’s claim of failure to accommodate. We do not find these arguments persuasive. Complainant asserts there is direct evidence of discriminatory bias on the part of the Store Manager based on a memo she wrote, and contends the Store Manager called him “handicapped” in the memo. Direct evidence is either written or verbal evidence that, on its face, demonstrates bias and is linked to an adverse action. Pomerantz v. Dep't of Veterans Affairs, EEOC Appeal No. 01990534 (Sept. 13, 2002). Where there is direct evidence of discrimination, there is no need to prove a prima facie case or facts from which an inference of discrimination can be drawn. 2021002520 4 Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). We do not find that this is evidence that demonstrates bias and is linked to an adverse action. As noted by the Agency, the first paragraph of the same letter described inappropriate workplace conduct by the Complainant and, if anything, again shows there were conduct and performance issues to support Complainant’s termination during his probationary period. We similarly find that neither this statement by the Store Manager, nor any other evidence presented, is sufficient to show pretext or discriminatory animus on the part of the Agency. Additionally, we agree with the AJ that Complainant did not initially allege failure to accommodate or amend his complaint to add this claim. Although the Complainant mentions reasonable accommodation in his complaint, he mentions it in connection with another employee viewing him as a threat. We note the AJ did allow Complainant to add a disparate treatment claim of disability over the objections of the Agency. Regardless, agencies are not obligated to lower performance standards or otherwise excuse conduct issues. See Johnson v. Dep’t. of the Interior, EEOC Petition No. 03940100 (March 29, 1996). While Complainant believes his performance did not warrant termination, he has failed to introduce evidence which would establish pretext and it is not the Commission’s role to second guess the Agency’s decision absent discrimination. Ransohoff v. Dep’t. of the Army, EEOC Request No. 05880627 (“the Commission's duty is not to review the propriety of the agency's business decision, but rather to determine whether such a decision was a mere pretext for discrimination on a prohibited basis”). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2021002520 5 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. 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. 2021002520 6 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 29, 2022 Date