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

Equal Employment Opportunity Commission

Sep 8, 2021

Appeal No. 2020001182 (E.E.O.C. Sep. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxie S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2020001182 Hearing No. 420-2019-00092X Agency No. DECA-002250-2017 DECISION On November 6, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 4, 2019 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., 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 Part-Time Sales Store Checker, GS-2091-03, at the Agency’s Commissary in Fort Rucker, Alabama. On September 26, 2017, Complainant filed a formal EEO complaint claiming the Agency discriminated against her based on race (Caucasian), color (white), and age (over 40) when, on a continuous basis, she was not afforded training opportunities because her work schedule did not 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. 2020001182 2 rotate the same as other employees that are similarly situated, which allegedly resulted in her not being selected for a 32-hour position. Following an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). However, the Agency filed its Motion for Summary Judgment. Complainant filed her objections. Thereafter the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination was established. In its September 11, 2019 final order, the Agency adopted the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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. (as revised, August 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). 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 failed to 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. 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 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). 2020001182 3 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). The evidence developed during the investigation fully support the AJ’s finding that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Complainant’s first level supervisor was the Supervisory Store Associate. Her second line supervisor was the Assistant Commissary Officer and her third line supervisor was the Commissary Officer. Complainant worked a 24-hour per week shift. It is undisputed that in January 2017, all store personnel received the same training, which was conducted during all-day training sessions to ensure all mandatory DeCA training as completed. Complainant received all relevant training between January 23, 2017 and March 30, 2017, including Cashier Training. It is also undisputed that during the relevant period, Complainant neither applied, nor was she selected, for a 32-hour position. The AJ also noted that Complainant received the opportunity to train in the Cash Cage on at least one occasion prior to filing her complaint. Complainant, however, provided a statement that she was no longer interested in working in Cash Cage and declined the training. The AJ noted that when asked what evidence to support her allegation that she was discriminated against because of her race, Complainant replied, “I do not know what else is could be.” The Supervisory Store Associate (S1) (African American, over 40) stated that she was responsible for setting employees’ schedules during the relevant period. S1 noted that there are separate rotating work schedules for 24-hour employees and 32-hour employees. At that time, Complainant occupied one of these 24-hour rotating schedules and was treated in the same manner as all other 24-hour employees. The 32-hour employees had a separate rotating schedule from the 24-hour employees. Complainant had asserted that on a continuous basis, she was not afforded training opportunities because her work schedule does not rotate the same as other employees which are situated which resulted in her not being selected for a 32-hour position. S1 stated, however, that Complainant is on a rotating schedule and work schedules rotate every week and was the same for all 24-hour employees. She further noted that Complainant requested to be trained in the cash office and “she had that opportunity. After the initial training in the cash office, she requested to come out of the cash office.” In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. 2020001182 4 Beyond her bare assertions, Complainant has simply provided no evidence to support her claims that her treatment was the result of her race, age, and color. Here, the preponderance of the evidence does not establish that the Agency management involved were motivated in setting Complainant’s schedule or providing her with training by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision, finding no discrimination.2 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 2 We are confused by one of the appellate assertions of Complainant’s representative. Specifically, we note that on appeal, Complainant’s representative made a “Request for Reconsideration” regarding a Commission decision expressly identified as EEOC Appeal No. 0120182084 (Kinnith M. V Department of the Army, EEOC Appeal No. 0120182084 (September 13, 2018). We note that this decision is not related to the instant case and involves an entirely different complainant. Moreover, it was issued more than a year before the instant appeal was filed. Therefore, we have not addressed this request herein. 2020001182 5 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. 2020001182 6 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 September 8, 2021 Date