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

Equal Employment Opportunity Commission

Jun 15, 2021

Appeal No. 2020002225 (E.E.O.C. Jun. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lidia B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2020002225 Hearing No. 510-2019-00424X Agency No. DeCA-00008-2019 DECISION 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 January 22, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales Store Checker, GS-3, at the Agency’s Mayport Commissary in Atlantic Beach, Florida. During the relevant time, the Supervisory Store Associate was her first level supervisor (S1). On February 13, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability and subjected her to harassment since December 2016 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. 2020002225 2 a. On October 2, 2018, S1 presented Complainant with her second letter for excessive absence then stated Complainant did not get hurt at work. Complainant was counseled on the possibility of reduction in duty hours and removal. On October 7, 2017, Complainant received her first letter for excessive absence. b. In February 2018, S1 requested all employees under her supervision sign a copy of the Defense Commissary Agency (DeCA) Blotter Report that pertained to requirements. c. In February 2017, November 2017 and January 2018, Complainant was denied her request for leave and considered Absent without Leave (AWOL). Specifically, she was marked AWOL in November 2017. d. In February 2017, S1 evaluated Complainant based on her disability. S1 marked complainant as “Met” in the areas of safety, customer care, and cash handling. Complainant alleged S1 told her she was rated as “Met” because Complainant was disabled and could not move her arm. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant requests the Agency be sanctioned for failing to timely issue a final decision. Complainant also states the Agency switched one page of S1’s affidavit without her knowledge. Complainant provides a copy of the original EEO affidavit from S1 that she claims was sent to her from the EEO investigator and a copy of page 11 of S1’s affidavit that had different answers to questions 84 and 85. Complainant claims the Agency called the investigator on July 31, 2019, after the investigation was completed and the answers were changed on this affidavit. Complainant states she has evidence to show that she is disabled and that her managers/supervisors had knowledge that she was disabled. Complainant provides copies of her medical documentation, information showing she was approved for the Voluntary Leave Transfer Program, Family Medical Leave Act (FMLA) paperwork, and information surrounding her request for a reasonable accommodation. One of the documents Complainant supplies is a June 29, 2017 memorandum with the subject: Decision on Reasonable Accommodation which stated Complainant was disabled and entitled to accommodation. Further, Complainant notes she has been on light duty since November 2016, and has not run a register from November 2016 through May 2019. 2020002225 3 The Agency submitted a brief in opposition to Complainant’s appeal on April 20, 2020. However, the Agency’s brief in opposition to Complainant’s appeal will not be considered as it was submitted beyond the applicable limitations period. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). At the outset, we note that Complainant presented some additional information on appeal that was not part of the record. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available previously. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, § VI.A.3 (Aug. 5, 2015). Because Complainant did not make such a showing, we decline to consider the exhibits she submitted on appeal that were not part of the record when the Agency issued its final decision. Complainant’s Request for Sanctions EEOC regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision. We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052, “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant’s claims. Id. Although the Agency failed to issue a timely decision as required by regulation, we find that the Agency did not act in a manner to warrant a sanction. See, e.g. Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016), req. for recon. denied, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency’s 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep’t of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016)(declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the 2020002225 4 delay); Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days)). With respect to Complainant’s request that the Commission sanction the Agency because of the length of time that it took to issue a final decision in this case, we decline. Specifically, we find that in this case the Agency’s untimeliness did not prejudice Complainant, the minimal delay here did not result in an unconscionable delay in justice or adversely affect the integrity of the EEO process as a whole. Claim a Complainant stated she was provided with the October 2018 excessive absence letter which stated she did not get injured at work.2 She explained, based on her absences, it seemed as if she was taking off days which she already had off. Complainant stated she was never counseled about any issues with her absences, but that S1 went to the Store Director and wrote her up even though she provided all of her doctor’s notes. Complainant stated she later learned that these notes had not been provided to the Store Director when S1 reported her alleged absences. Complainant stated when she gave her doctor’s notes to the Store Director, the letter was rescinded. Complainant believed S1 issued her the letter as a result of Complainant getting hurt on the job. In response to the question asking what evidence she had to support her allegation that her disability was a factor, Complainant responded that she believed that S1 made a mistake on how she handled her workers’ compensation claim and is trying to use her disability against her. The record reveals Complainant had been granted FMLA from November 2016 through February 22, 2017. After her FMLA ended she continued to miss a lot of work. In April 2017, the Agency requested information and advised Complainant of the option of requesting reasonable accommodation. In June 2017, Complainant was granted the reasonable accommodation of an assignment to the self-checkout (SCO) register and/or ID desk for a period of four months. On October 7, 2017, the Agency issued a letter of requirement due to her unsatisfactory leave record and placed her on leave restriction. The record reveals that on May 1, 2018, the restriction was removed due to Complainant’s chronic medical problems. Complainant again began missing work and took a large amount of leave, and on October 2, 2018, the Agency issued a memorandum regarding her excessive absences from duty. The letter noted that apart from the intermittent FMLA leave she was provided from February 3, 2018 through August 18, 2018, she had used 92 hours of sick leave, 109 hours of annual leave, and had been in a non-pay status for 646.25 hours due to medical issues she had been experiencing. The letter noted Complainant currently had no leave available and rarely worked a full pay period without requesting some form of leave. 2 For purposes of this decision, we assume Complainant is a qualified individual with a disability. 2020002225 5 The letter noted Complainant was ineligible for FMLA as she had already exhausted that option for the applicable 12-month period. Complainant was advised “even though the reasons for your absences may have been legitimate and beyond your control, your absence from work has become excessive and unreasonable.” Complainant was warned if her absences continued, she may be considered for further administrative action including reducing her scheduled duty hours up to removal from service. Complainant was informed she may be eligible to pursue disability retirement based on her medical status. Upon review, we find the Agency presented a legitimate, nondiscriminatory reason for issuing the October 2018 letter, concern with Complainant’s excessive absences. Complainant stated that once she provided copies of her doctor’s notes, the letter was rescinded. We find Complainant failed to establish that S1’s actions were based on discriminatory animus. We note the October 2017 letter is not an accepted issue in this complaint. Further, there is no claim of denial of accommodation in the present complaint. Complainant failed to show that the Agency’s actions were a pretext for discrimination. Claim b Complainant stated the blotter report was like a weekly newsletter and was given to each employee by email, but everyone knew the blotter report at issue was directed towards her. Complainant maintained it was not mandatory that employees read or sign the blotter report. She stated the blotter report that S1 wanted employees to sign dealt with sick leave and she believed S1 wanted her to sign it so that she could say Complainant was informed about the policy. Complainant stated that S1 was trying to get all employees to read and sign acknowledging receipt of the blotter report. Complainant stated she did not sign the blotter report. Complainant stated the evidence supporting her claim was comments S1 made to other employees about Complainant not being hurt and the write-ups for sick leave. S1 stated she wanted everyone to sign the blotter report for training purposes, which she stated was approved by Human Resources. S1 stated she consulted with Person A (Store Administrator) and that Person A thought the blotter would be great for training purposes. There is no claim that Complainant’s name was specifically mentioned in the blotter report. Complainant acknowledged that S1 attempted to get all employees to sign the blotter report. Complainant stated she believed the matter was resolved as she did not sign the report. Complainant does not contend that any disciplinary action was taken against her as a result of her not signing the blotter report. Upon review, we find Complainant failed to show that the Agency’s actions were motivated by her disability. Claim c Complainant stated in February 2017, she had a family member graduating from college and that she requested leave but Person A denied the request stating she was needed in the store for pay day week and formal inventory preparations. Complainant stated she did not report to work because her doctor had instructed her to take time off due to high blood pressure. 2020002225 6 Complainant stated she also requested leave in November 2017, because she had an accident when she bled through her clothes and Person A informed her that since she was on leave restrictions, she would not sign the leave request. Complainant stated she had no choice but to go home without approval and was charged AWOL. Additionally, Complainant stated in January 2018, she was having a medical allergy issue and requested to go home, but S1 denied her leave request. S1 stated she did not recall Complainant’s leave request for November 2017 being denied but did recall Complainant’s leave request for November 2016 being denied due to workload. The record contains a leave request dated February 28, 2017, in which Complainant requested Leave Without Pay (LWOP) for March 3 - 4, 2017 for her daughter’s “senior weekend in NC.” The leave request was disapproved by Person A with the notation that Complainant was needed for payday weekend and formal inventory preparation. The record contains a leave request dated January 12, 2018, requesting sick leave for 4.75 hours for “allergies up (itching eye, nose, ear).” S1 disapproved the request with the notation that she was instructed to bring a doctor’s note as she was on leave restriction. It was noted that Complainant stated she would not bring a doctor’s note. In her rebuttal affidavit, Complainant provided a leave request dated November 12, 2017 which requested eight hours of sick leave with a notation “bleed through clothes/stress.” The request is not approved or disapproved and contains the notation “refuse to sign.” Upon review, we find the Agency had legitimate, nondiscriminatory reasons for denying the February 2017 and January 2018 requests. Specifically, in February 2017 the request was denied due to workload reasons and in January 2018, the request was denied after Complainant failed to bring a doctor’s note. Regarding the November 2017 request, in her affidavit S1 did not recall that specific incident of leave being denied. In the EEO Counselor’s report, S1 stated she remembered the incident with Complainant having an accident and stated it occurred on a weekend when S1 was not there. S1 stated that Person A handled the incident and noted that Person A had since retired. There is no documentation that Complainant was marked AWOL/LWOP for that day. Further, Complainant states that Person A denied her leave in November 2017, because she was on leave restriction. The record also contains a November 14, 2017 email from Complainant regarding the situation in which Complainant states she was asked to provide a doctor’s note for the leave and Complainant questioned how to get a doctor’s note for bleeding through her clothes. Upon review, we find Complainant has not shown that the Agency’s actions were based on discriminatory animus. 2020002225 7 Claim d Complainant was rated “fully successful” for the 2017-2018 rating period. She claimed S1 evaluated her based on her disability and gave her a rating of “met” in the areas of safety, customer care, and cash handling because she could not move her arm. She stated that S1 said she was a Sales Store Checker and could not do her job. Complainant stated she never received any feedback or counseling informing her that she was not performing to standards. Complainant stated she wrote the Zone Manager and her evaluation was changed on December 18, 2017, in the area of customer service. However, she noted she still received “met” in safety and cash handling and did not receive a bonus. Complainant stated the evidence of discrimination was the rating itself and a recording of S1 “actually telling me.” In the rating, Complainant’s strengths were listed as the ability to deal with a wide variety of personalities and the ability to take direction. Complainant’s weaknesses were listed as needing to ensure the “Core Phrases” are being practiced daily, all I.D. cards and coupons are required to be checked on the SCOs at all times, and noting Complainant has improved in safety and security while working on the I.D. desk by calling for assistance when there is a safety or security violation. Further, it was noted that Complainant was improving but still needed to watch the amount of small talk with customers. In her affidavit, S1 denied rating Complainant based on her disability. S1 explained that Complainant received “met” in all areas; however, customer care was changed to “exceeded.” S1 noted register handling was initially listed as “unable to rate” because Complainant did not run the register; however, the Store Director changed the rating to “met.” S1 noted that the Store Director asked her to change the rating for customer care to “exceeded,” which S1 did. Complainant’s overall rating was “fully successful.” S1 stated all employees were counseled during the mid-year as to where they could improve in each element. As noted above, Complainant states the Agency switched one page of S1’s affidavit and cites to the answer to two questions which she notes differ from S1’s responses in the original affidavit. Complainant states that in the original affidavit, under question 84, S1 was asked about the allegation that S1 evaluated her based on her disability and S1 responded, “yes I did evaluate [Complainant] in 2017, but because of a disability.” In question 85, S1 was asked why Complainant received “met” in the area of safety, customer care, and cash handling. In the response, S1 stated, “[Complainant] did Met in all areas.” The record reveals Complainant submitted a rebuttal citing S1’s answer to question 84 in the original affidavit as evidence of discrimination. Complainant claims that thereafter, S1’s answer to questions 84 and 85 were changed. Regarding question 84, in the amended affidavit S1 stated, “yes I did evaluate [Complainant] in 2017, but her rating was not based on her disability.” Regarding question 85, S1 stated: [Complainant] did receive “Met” in all areas; however, customer care was changed to exceeds, cash handling and register handling was met. Register handling was rated 2020002225 8 initially, unable to rate because she did not run the register, but the store director changed the rating to “met.” [Complainant’s] overall rating for FY2017 was “fully successful.” In an attempt to show pretext, Complainant stated that she had no write ups in the areas of safety/security and customer care and therefore, she exceeded in those areas. Complainant acknowledges she did not handle the cash register during the relevant time and says her rating in that area should have been “unable to rate.” However, she also states that in cash handling she should have been rated “exceeded” because she never had one occurrence in cash handling. Regarding the changes in S1’s responses to the two questions cited, we find there is no indication the changes were made for improper reasons. Rather, the record appears to show that S1’s subsequent responses were a clarification of her original statements. Further, we note S1’s responses in the amended affidavit correspond to her responses captured in the EEO Counselor’s report noting that S1 did not evaluate Complainant based on her disability and confirming that she was evaluated on the performance of her duties. Upon review, we find Complainant failed to show the Agency’s actions surrounding her evaluation were a pretext for discrimination. Moreover, we find Complainant failed to establish that she was subject to a hostile work environment. Specifically, we find she has failed to provide evidence to support her clam that her treatment was based on her disability. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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). 2020002225 9 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. 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. 2020002225 10 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 June 15, 2021 Date