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

Equal Employment Opportunity Commission

Dec 23, 2021

Appeal No. 2020003726 (E.E.O.C. Dec. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jacquetta C.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2020003726 Agency No. DeCA-00021-2019 DECISION On May 27, 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 April 20, 2020 final decision 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 period at issue, Complainant worked as a Store Associate, GS-1100-04, at the Agency’s Bridgeport Commissary, Marine Corps Mountain Warfare Training Center in Coleville, California. 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 2020003726 On December 22, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her because of her sex (female), disability,2 age (61), and reprisal for prior protected EEO activity when: 1. On October 11 and 12, 2018, the Supervisory Store Associate (“S1”) demanded that Complainant sign a memorandum regarding cash drawer procedures. 2. On October 17, 2018, S1 singled out Complainant when he presented her with a memorandum regarding cell phone procedures. 3. On numerous occasions, S1 instructed Complainant to stock milk even though he was aware of Complainant’s medical restrictions. In addition, S1 questioned Complainant on four different occasions why she was not able to run a cash register. 4. On a recurring basis, S1 made sarcastic remarks about Complainant’s shoulder injury in front of customers and discussed her medical condition in front of other employees. 5. On unknown date, Complainant needed help changing a password. S1 suggested 01BECKYLOVEME1@. Complainant was extremely uncomfortable and told him to stop standing so close behind her. Amendment #1: 6. On March 27, 2019, Complainant was presented with a Letter of Warning (LOW) dated March 21, 2019. 7. On February 23, 2019, Complainant was charged Absent Without Leave (AWOL). She was the only employee not given a three-day holiday. Amendment #2: 8. On April 12, 2019, after Complainant made several requests for her schedule, S1 began screeching and calling Complainant a “smart-ass.” After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. 2 Complainant stated that had continuing effects from an on-the-job injury to her right rotator cuff, meniscus and back. Then, in June 2018, Complainant was in an auto accident and tore her left rotator cuff. Complainant is on long-term modified work tasks with medical restrictions. 3 2020003726 The instant appeal from Complainant followed. ANALYSIS AND FINDINGS Disparate Treatment - Claims 6 and 7 A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, 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, nondiscriminatory 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). Here, Complainant claimed that her supervisor, S1 (male, over 40 years old), discriminatorily issued her a letter of warning in March 2019 and charged her with being absent without leave (AWOL) on February 23, 2019. S1 testified during the investigation that Complainant received the LOW after he asked her to work on a required training, which she refused to do. S1 said he asked her to work on the training because it was marked as not having been completed by Complainant. Complainant testified that she had completed the training, and there was an error in the system. S1 told her that she needed to complete the training anyway so that it was recorded as completed. S1 testified that he brought Complainant’s refusal to work on the training to the attention of human resources and received authorization for the issuance of the LOW. With regard to the AWOL charge, Complainant’s second-level supervisor (“S2”) (male, over 40 years old) testified that the decision to charge Complainant as AWOL for February 23, 2019, was made by the timekeeper. The date was the Saturday of the President’s Day holiday weekend. The timekeeper charged Complainant with AWOL because Complainant was attempting to obtain Holiday leave on a date when she was scheduled to be at work. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons proffered by Agency management for the disputed actions were a pretext designed to mask a discriminatory or retaliatory motivation. There is simply no evidence that Complainant’s sex, disability, age or prior EEO activity played any role in these events. 4 2020003726 Harassment/Hostile Work Environment To establish her harassment claim, Complainant must show 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 sex, disability, age or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. As an initial matter, because we have already concluded there is no evidence of discrimination or unlawful retaliation in regard to Claims 6 and 7, we will not consider them in adjudicating Complainant’s overall harassment/hostile work environment claim. With regard to her other allegations, Complainant claimed that S1 singled her out when he had her sign memorandums for cash drawer and cell phone procedures. Complainant also stated that S1 continually mentioned her injuries and did so in the presence of co-workers and customers. She further stated that S1 called her a “smart-ass.” Regarding the “smart ass” claim, S1 testified that he told Complainant to stop being a smart-ass, but he did not call her a smart-ass. This occurred after Complainant asked S1 repeatedly for the schedule when S1 was late in preparing and distributing the upcoming work schedule. The record includes further statements from various parties at the work site. One of Complainant’s co-worker’s (CW1) (female, over 40 years old) testified to witnessing S1 speak to Complainant in what she described as a “nasty” tone and making the remark, “don’t pick that up… I don’t want you to hurt yourself.” S2 stated that Complainant and S1 did not have a good relationship and argued often. S2 confirmed the interaction when S1 called Complainant a “smart-ass,” and testified that he discussed the incident with S1 and made it clear that he should not be using that language toward Complainant. Complainant’s other co-worker (CW2) (female, under 40 years old) testified that Complainant often talked about her disability so that everyone knew, and that she was often disrespectful and sarcastic toward S1. CW2 also testified that she never heard S1 raise his voice at Complainant. Even assuming most of the incidents identified by Complainant to support her harassment claim occurred as alleged, Complainant still needs to prove discriminatory motive in order to establish a violation of the anti-discrimination statutes. The image which emerges from considering the totality of the record is that there were conflicts and tensions with S1’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. 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.”). 5 2020003726 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 S1 was motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that Complainant 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 Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of 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. 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. 6 2020003726 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. 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 23, 2021 Date