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

Equal Employment Opportunity Commission

Oct 24, 2022

Appeal No. 2022003098 (E.E.O.C. Oct. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jefferey G.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2022003098 Hearing No. 450-2021-00008X Agency No. DeCA-00140-2020 DECISION On May 14, 2022, 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 25, 2022, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. During the relevant time, Complainant worked as a Store Manager at the Agency’s Commissary in Albany, Georgia. On June 18, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On January 13, 2020, the complainant learned that he was not selected for the position of Assistant Commissary Officer (Job Announcement No. DeCA-20- 10673826-MP) at Fort Worth 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. 2022003098 2 2. On December 5, 2019, the complainant learned that he was not selected for the position of Assistant Commissary Officer (Job Announcement No. DeCA-20-CCP- 10599979-MEJ) at Fort Worth Commissary. In addition, the complainant states that he was not offered an interview, which prevented his career advancement; and 3. In mid-October of 2019, the complainant learned that he was not selected for the position of Assistant Commissary Officer (Job Announcement No. DeCA-19-CCP- 10458985-MP) at Fort Worth Commissary.2 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. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on April 21, 2022. 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. 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. (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). In order 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 2 Claim (3) for the non-selection of job announcement number DeCA-19-CCP-10458985-MP was dismissed in the June 29, 2019, letter of acceptance in accordance with 29 C.F.R. 1614.105 (a)(l) which states that an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory. Report of Investigation (ROI) at 595. Complainant has not disputed the appropriateness of this issue on appeal, and we will not further address the issue herein. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015) (advising that the Commission has the discretion to review only those issues specifically raised in an appeal). 2022003098 3 establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 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. We also find that the AJ correctly analyzed the case as to whether Complainant was subjected to disparate treatment based on race and retaliation as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s legitimate, nondiscriminatory explanations for the alleged actions are merely a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 256 (1981). With regard to claim 1, Commissary Officer, the selecting official for the position, stated that of those certified, the top four were selected for interviews, and Complainant was not on that list. ROI at 820. He went on to specify that Selectee was selected based upon her resume, advanced degrees, reference appraisals, past performance, and panel scores. ROI at 450, 467, 823. Concerning claim 2, four people, including Complainant, were referred in consideration for the position. ROI at 319. Complainant was noted to have an unfavorable recommendation. ROI at 319. Zone Manager confirmed that she contacted another Zone Manager in the area that Complainant worked; she asserted that this is a customary practice. ROI at 848. The reference memorandum asserted that the Commissary Officer for Complainant relayed that Complainant “always argued with her when she asked him to do something. She said that he would do [the requested task] but she wished he was not so confrontational…I explained some of the challenges…and what we needed; she said no.” ROI at 789. As such, no selection was made for this position. ROI at 528, 705. Having found that, in both claims on appeal, the Agency provided a legitimate, nondiscriminatory reason for its actions, we now turn to Complainant to provide evidence that the Agency’s actions were merely a pretext. We find that he has not done so here. Rather, he relies upon his own subjective beliefs of both motive and relative skill as reasons for discrimination. Complainant contended that he had more experience in leadership with the Agency than the ultimate selectee. ROI at 776. This, alone, however, is not sufficient to provide evidence of pretext. “[P]retext can be demonstrated by ‘showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’” Dalesandro v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (alterations in original) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). Even assuming Complainant did have more Agency leadership positions, this is not so great a difference as to render the Agency’s decision to favor the Selectee based upon education to be unworthy of credence. Dalesandro, EEOC Appeal No. 01A50250. While we recognize that Complainant sincerely believes that he was the most qualified candidate, an employer has broad 2022003098 4 discretion to set policies and carry out personnel decisions. The Commission cannot second- guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). To the extent that Complainant argues that the Agency diverted from regular policy in Zone Manager’s seeking a reference not on Complainant’s reference list, as well as the interview process for the position, the Commission does not find those, without more, to be evidence of discriminatory animus.3 A complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext of discrimination as opposed to mistake or poor management. See Perry v. Dep’t of Housing & Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006) (affirming that mere conjecture that the agency's explanation is a pretext for intentional discrimination is, without more, sufficient evidence to prove pretext); 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) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus); Bodalia v. Dept. of Veterans Aff., EEOC Appeal No. 01955275 (Aug. 27, 1997) (affirming that poor management by an Agency is not, in and of itself, evidence of discrimination). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. The Commission notes that, at all times, the burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). The Commission finds that the record is devoid of such evidence. Accordingly, we AFFIRM the Agency’s final order implementing 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. 3 To the extent Complainant argues that the Agency violated an employment contract, collective bargaining agreement, or other issue of merit protection, these issues are not within the jurisdiction of the Commission and will not be addressed herein. 2022003098 5 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. 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. 2022003098 6 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 October 24, 2022 Date