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

Equal Employment Opportunity Commission

Feb 14, 2022

Appeal No. 2020005494 (E.E.O.C. Feb. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gaylord I.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2020005494 Hearing No. 430-2018-00303X Agency No. DeCA-00204-2017 DECISION On September 15, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 20, 2020, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Store Associate, GS-11, at the Agency’s Commissary at the Seymour Johnson Air Force Base (AFB) in Goldsboro, North Carolina. His first level supervisor was the Produce Manager (Manager), and his second level supervisor was the Associate Store Director (Director). See Report of Investigation (ROI) at 4. 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. 2020005494 2 Complainant has been employed at the AFB Produce Department since 2009. See ROI at 18. On July 17, 2017, he was issued his annual performance evaluation rating as fully successful for the period of June 10, 2016, through June 10, 2017. He has alleged that while his yearly performance was documented as fully successful, all the years prior he was awarded either an outstanding or excellent rating. See ROI at 13. Complainant explained that he gave his job 120% and that customers even looked for him. Id. at 69-79. Complainant pointed out that he had trained at least three employees, took on extra responsibility at times, and always looked for ways to help out. Id. at 70. In contrast, he argued that the Manager was always looking for something wrong. Id. He recalled that she would instruct him to ask customers if they found everything they were looking for as they entered, which did not make sense to him as they were just arriving. Id. He also contended that the Manager would ask him to do double stock merchandise, and he did not because it was against policy. Id. The Manager was asked about the specific rating criteria for Complainant's rating period at issue. ROI at 93-96. As to Customer Care, she explained that Complainant met the standard, but did not exceed because he did not take initiative to engage with customers, nor did he make recommendations to make improvements or notify his supervisor with possible solutions for customer issues. ROI at 93. As to Corporate Values, Complainant also met the standard but did not exceed it. Id. at 94. The Manager explained that Complainant struggled with civility in the workplace, did not anticipate the needs of his coworkers, and was not proactive in finding solutions. Id. In regard to Merchandising, the Manager found that Complainant exceeded in this element; he took pride in making creative eye-catching displays and noticed and reported improperly labeled items. Id. at 95. Complainant also exceeded in Accountability, in that he ensured proper quantity and quality of all produce items with no more than one error during the period at issue. Id. Complainant met the standard for Labels, Shelf and Area Maintenance. Id. While he noticed improper signage, he did not correct or change signage on his own. Id. There were also times when a product was not stocked, but it was available in the back. Id. Finally, as to Safety and Security, the Manager stated that Complainant met the standard for the element, though he did not exceed because he had one documented safety incident at which time, he injured himself. Id. at 96. The Director stated that when she became aware of Complainant’s complaint about his rating, as well as concerns from another black, male employee, she met with the Manager. ROI at 107. The Director determined that the Manager did not have sufficient documentation to justify Complainant’s ratings, or the ratings of two other employees who were marked as fully successful. Id. As such, the Director changed the ratings of all three employees to excellent. Id. In order to adjust Complainant's rating to excellent, the Director changed one of the "met" elements to "exceeded." Id. For Complainant, the Director changed Customer Care from "met" to "exceeded." Id. She commented that Complainant worked exceptionally well with customers and was even nominated by his peers to be a store Customer Service Ambassador. Id. 2020005494 3 At the same time, Director changed one element from "met" to “exceeded” for the two other employees who were awarded fully successful ratings. Id. This change occurred on August 1, 2017. Id. On August 10, 2017, Complainant sent an email to the EEO Specialist asserting that he should not have initially been awarded a fully successful rating. ROI at 34-35. Complainant argued that he should have received either an excellent or outstanding rating as he had received in the past. ROI at 69. On September 19, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), color (Brown), and age (66) when: 1. On July 17, 2017, he was issued his annual performance evaluation rating of fully successful for the period of June 10, 2016 through June 30, 2017. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his 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 determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on August 14, 2020. The AJ determined that there were no genuine issues of material fact for which a hearing would be necessary, and that a further development of the record was unlikely to lead to a finding of discrimination. On August 20, 2020, the Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ decision is incorrect because the Manager discriminated against him. He argues that himself and the other two employees whose ratings were changed were each brown in color; and despite doing their jobs, they were given fully successful ratings. In years past, he argues they had been rated as excellent or outstanding. Complainant also reiterates his complaints of harassment, stating that he and others were harassed due to his skin color. The Agency has not responded to Complainant’s arguments on appeal. 2020005494 4 ANALYSIS AND FINDINGS Decision Without a Hearing 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. However, despite Complainant’s contentions that he was subjected to unlawful discrimination, he has not provided any argument or evidence that there are material facts in dispute. Therefore, the Commission finds that the AJ appropriately issued the decision without a hearing. 2020005494 5 Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248. 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). For purposes of analysis we will assume that Complainant established his prima facie case of discrimination. We find that the Agency articulated a legitimate, nondiscriminatory reason for its action. When the Manager was asked to explain her decision to rate Complainant as fully successful, she provided answers corresponding to the rating elements in the annual review form. ROI at 94. In addition, when the Director became aware of Complainant’s dissatisfaction with his rating, she conducted a separate review of his rating along with the ratings of two other employee’s. Based on her review, the Director decided to adjust Complainant’s rating from fully successful to excellent within one month from the issuance of his performance review. In order to adjust Complainant's rating to excellent, the Director commented that Complainant worked exceptionally well with customers and was even nominated by his peers to be a store Customer Service Ambassador. Based on our review of the record, although the Manager provided an initial rating, the Director determined that Complainant should have been rated as excellent. Having found that the Agency articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has failed to meet this burden. Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05. Complainant has stated that he and others were rated as fully successful, while other white women in the division who appeared to be friends with the Manager were rated as excellent or higher. He has also argued that he gave his job 120%, and as such, did not deserve to be rated less than excellent. 2020005494 6 However, Complainant has only made bare assertions that the Manager discriminated against him or that others were treated differently, which is insufficient to prove pretext. Although the Manager initially rated Complainant as fully successful, the Director performed her own review and adjusted Complainant’s rating to excellent. To this extent, even if mistakes were made, Complainant has not provided any evidence that these deviations were due to his protected classes or activity. We have found that a mistake, without more, does not establish discriminatory animus. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018). Accordingly, we find that the AJ properly concluded that Complainant did not establish that the Agency discriminated against him. 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 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. 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 2020005494 7 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. 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. 2020005494 8 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 February 14, 2022 Date