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

Equal Employment Opportunity Commission

Dec 14, 2021

Appeal No. 2020004623 (E.E.O.C. Dec. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Georgianne B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2020004623 Hearing No. 541-2018-00089X Agency No. DeCA-00173-2017 DECISION On August 20, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 21, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as a Secretary assigned to the Office of Store Director, Fort Carson Commissary in Fort Carson, Colorado. On October 23, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (Hispanic), sex (female), disability, age (over 40), and in reprisal for prior protected EEO activity 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. 2020004623 2 a. In 2014, the Store Director Officer commented, “I didn’t know your brother was Mexican” and “I didn’t know you had blacks in your family either.” b. On November 13, 2016, Complainant was targeted for a “random” bag search and not provided the random search form for signature. c. On November 14, 2016, Complainant was questioned about being in the commissary after hours and she was searched. d. On June 5, 2017, Complainant was accused by the Store Director of having made inappropriate and discriminatory remarks and told she was not considered for the Assistant Supervisory Store Associate position in December 2015, because of having too much negativity with employees. e. On June 26, 2017, the Store Director questioned Complainant regarding her schedule for store reset and required her to report to the Store Manager prior to leaving for the day. f. On August 15, 2017, Complainant received a proposed 14-day suspension. g. On October 31, 2017, Complainant received a negative mid-year evaluation indicating she needed to pay closer attention to pay issues and communicate in a positive manner. h. On November 6, 2017, Complainant was advised she would be suspended for five days, effective December 1, 2017. i. On November 9, 2017, Complainant was chastised by the Zone Manager for submitting her Significant Activity Report early. j. She was not reimbursed with overtime or compensatory time for a temporary duty on August 21 and 28, 2017. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the AJ issued a Notice of Proposed Summary Judgment. On May 26, 2020, the AJ issued a decision by summary judgment finding no discrimination. The Agency issued a final order adopting the AJ’s decision. The instant appeal followed. 2020004623 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment 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. 2020004623 4 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). The Store Director (“Black/Mix,” female, over 40) stated that she was Complainant’s first-line supervisor. The Store Director explained that on August 15, 2017, she proposed that Complainant be suspended for 14 days for Conduct Unbecoming a Federal employee and Failure to Follow Instructions. In her notice of proposed suspension, she outlined four specifications for the charge conduct unbecoming a federal employee: • On May 26, 2017, a former supervisor of Complainant reported to her management that she had made inappropriate remarks during a discussion in the break room related to race and/or color. In sum, the former supervisor reported she complained that black employees were being unfairly favored and promoted. • At the same time, it was reported by the former supervisor that Complainant made disparaging remarks about various members of management. • On May 30, 2017, Complainant made derogatory comments to a coworker about the Produce Manager. • On June 5, 2017, while off-duty, she called another coworker on his personal phone to ask what was being said about her former supervisor hearing her have a conversation with her son in the breakroom. The one charge of insubordination centered on Complainant’s failure to follow verbal instruction to submit a written statement about what occurred on May 26, 2017. On November 6, 2017, Complainant’s second-level supervisor, after allowing Complainant to respond to the proposed suspension, found most of the charges to be substantiated and suspended her for five calendar days effective December 1, 2017. Based on this evidence, we determine that the responsible Agency officials articulated legitimate non-discriminatory reasons for the suspension. Complainant has not proven, by a preponderance of the evidence, that she did not engage in the behavior used to justify the suspension or that the proffered reasons were a pretext designed to mask the true discriminatory or retaliatory motivations for the suspension. 2020004623 5 Harassment To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, sex, age, disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). The Store Director stated that in 2015, Complainant showed pictures of her family and made directed no offensive remarks regarding Complainant’s family. Specifically, the Store Director stated, “it doesn’t matter to me what her family is…I don’t care what race, color, nationality her family is - we are all the same.” Even assuming the Store Director made the remarks attributed to her by Complainant, there is simple no evidence of a discriminatory motivation. With respect to Complainant’s allegation that on November 13, 2016, Complainant was targeted for “random” bag search and not provided the random search form for signature, the Store Director stated that a Quality Assurance Evaluator notified her that Complainant was in the commissary after hours. She stated that the next day, November 14, 2016, she informed Complainant that there was no reason for her to be at the store after hours. However, beyond this comment, there is no evidence that any action was taken against Complainant for being in the store. The Store Director recalled questioning Complainant regard her schedule for working the “store reset.”2 Specifically, the Store Director stated that there was a mix-up because the Agency had the reset scheduled on different times. The Store Director informed Complainant to either come on the morning shift or the night shift. The Store Director stated that when she saw Complainant, she stated she thought Complainant was on the other shift and Complainant said she was on this shift, and that it was not a” big deal.” With respect to Complainant’s allegation that on October 31, 2017, she received a negative mid- year evaluation indicating she needed to pay closer attention to pay issues and communicate in a positive manner, the Store Director stated that Complainant’s mid-year evaluation was a good evaluation and this was a single observation designed to help ensure she got the highest possible final evaluation. The Store Director recalled that Complainant claimed she worked overtime while attending a class at Fort Buckley in August 2017, but that Complainant never submitted her overtime on her timecard. 2 The record reflects that the term “store reset” is when items are switched around. 2020004623 6 She asserted that she asked Complainant how many hours she worked, but Complainant would not tell her. Moreover, the Store Director stated that Complainant is the timekeeper “so she knows the process for requesting the time.” The Zone Manager (Caucasian, white, over 40) stated that during the relevant period he was Complainant’s second level supervisor (“S2”). In regard to Complainant’s submitting her Significant Activity Report (“SAR”) early, he does not recall if it was Complainant, but other secretaries at times send the SAR report early and he informed the secretaries that it was too early for submission of the SARs. Beyond her bare assertions, Complainant failed to prove that the incidents either occurred as alleged or that discriminatory factors or retaliatory animus played any role in the events. The image which emerges from considering the totality of the record is that there were conflicts and tensions with the Store Manager’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that the Store Manager was motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment finding no discrimination. 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. 2020004623 7 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. 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. 2020004623 8 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 December 14, 2021 Date