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

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2021000867 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ouida L.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021000867 Hearing No. 480-2020-00304X Agency No. DeCA-00172-2019 DECISION On November 16, 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 final action concerning her 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. and 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 action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-2091-3 Sales Store Checker/Cashier at the Agency’s Nellis Air Force Base Commissary in Las Vegas, Nevada. Complainant’s first-line supervisor was a Supervisory Store Associate (S1), her second- line supervisor was the Assistant Commissary Officer (S2), and her third-line supervisor was the Store Director (S3). Report of Investigation (ROI) at Section 7.2a. 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. 2021000867 2 According to Complainant, as a result of a childhood polio diagnosis, she has a deformity of her left foot that makes it difficult to walk. Complainant stated that her disability is obvious based on the way she walks. Complainant has a handicapped parking placard issued by the Nevada DMV, and she averred that she parks as close as possible to the Commissary to avoid falling as a result of extra walking. Complainant noted that she engaged in prior EEO activity in 2008, when she initiated an EEO complaint after learning that the Nellis Air Force Base Commissary would not allow her to transfer from McGuire Air Force Base in New Jersey. More recently, in January 2019, Complainant stated that she again engaged in protected EEO activity when she complained of discrimination and harassment by S2 to Human Resources and the Ombudsman. Complainant averred that, on April 23, 2019, she had a meeting with S1 and S3 about her discrimination and harassment concerns. According to Complainant, even after the April 2019 meeting, the harassment and discrimination continued. ROI at Sections 1.1, 7.2a. The record contains a January 25, 2019, letter from Complainant to Human Resources, alleging that S2 was subjecting her to continuous harassment and discrimination and citing four examples. Complainant stated that, on one occasion when the Commissary lost power, she asked S2 if she could take leave to address a water leak at her home, but S2 denied her request because she wanted Complainant to put away some food that was on carts. When Complainant explained to S2 that she did not feel safe working in the dark, avers Complainant, S2 told her she could go home to take care of the leak issue. According to Complainant, when she returned to work the next day, S1 told her that she had been charged absent without leave (AWOL) because S2 had refused to sign her leave slip. ROI at Section 1.1. On the second occasion, asserted Complainant, a customer nearly hit her with an electric shopping cart. Complainant alleged that, when she told the customer that he almost ran into her, he responded that, if she did not get out of his way, he would run her over. According to Complainant, the customer asked for a manager and told S2 that Complainant had been rude to him. Complainant averred that, without even seeking Complainant’s side of the story, S2 began to verbally discipline and chastise her in front of the customer and others. ROI at Section 1.1. Complainant stated, in the third instance, she was working at the “Express Lane” for customers with no more than 15 items. When three customers approached the lane with a large number of items that they wanted separated into three orders, Complainant stated that she told the customers that since they only had one military ID, while she could subtotal the items separately, there could only be one transaction for the order. According to Complainant, a customer without a military ID became nasty towards her. In response, she explained that she was only following the rules. Complainant alleged that the customer without a military ID proceeded to speak to S2 and made false accusations about what had happened, leading to S2 chastising Complainant in front of her coworkers and customers. Complainant asserted she was not given the opportunity to explain her version of the incident. Instead, states Complainant, S2 told her that she did not want to listen to what Complainant had to say. ROI at Section 1.1. 2021000867 3 In the fourth example, also while working at the “Express Lane”, Complainant states that two customers came to her lane with approximately 40 items. According to Complainant, she asked these customers if she could ring up the person behind them, who only had two items, first. Complainant alleged that, although she had been customer-oriented and following the rules for the “Express Lane,” S2 took her to S1’s office and yelled at her to the point that Complainant was in tears. ROI at Section 1.1. On June 13, 2019, asserted Complainant, S1 and two of her coworkers (C1 and C2) approached her and told her to move her car out of the handicapped parking spot. Complainant refused, averring that, in accordance with Agency policy, she was legally parked in a designated handicapped spot with the proper authorization. Complainant believed that C1 approached her in the parking lot and asked her to move her car at S2’s instruction. Complainant averred that C2 approached her in the break room and told her that S1 directed her to tell Complainant to move her vehicle. S1 later approached her in the break room and asked her to move her car. According to Complainant, S1 told her that, because the Commissary was having a case sale in the parking lot, the handicapped parking spots were reserved for customers only. Complainant averred that she had parked in a designated handicapped spot for the past 10 years without issue, including during the past nine case lot sales. Complainant contended that Agency policy provides that handicapped parking spots are available for those with proper authorization on a first-come, first- serve basis and are not to be saved for specific individuals. ROI at Sections 1.1, 7.2a. S1 denied asking Complainant to move her car, but stated that she did instruct other cashiers to move their cars away from the sale area. According to S2, all employees, including those with handicapped parking placards, were asked not to park in the designated sale spaces. S2 stated that other handicapped parking spaces were available. S3 averred that, during the case lot sale, Commissary employees are asked to leave the parking spots closest to the tent for customers. According to S3, on June 13, 2019, S2 asked all the employees, not just Complainant, to move their cars and there were other handicapped parking spots available in a different area. S3 noted that Complainant did not move her vehicle and parked in the same parking spot on June 14, 2019. ROI at Sections 7.2b, 7.2c, 7.2d. C2 stated that, on June 13, 2019, all staff were asked over the Commissary intercom to move their cars away from the sale area and that she did so after hearing the announcement. According to C2, Complainant, who was parked in a handicapped parking spot in front of the Commissary, was the only employee who did not move her car. C2 averred that when she asked Complainant to move her car, pursuant to S1’s request of her, Complainant started crying. There were other handicapped parking spaces available, noted C2. ROI at Section 7.2e. On June 18, 2019, S1 issued Complainant a Letter of Counseling because her till was short $38.00 on June 14, 2019. According to Complainant, while the Letter of Counseling identified June 14, 2019, the alleged shortage occurred on June 13, 2019, the date she was asked to move her car. 2021000867 4 Complainant stated that, although she did not believe that her till was short $38.00 as alleged, she was humiliated, stressed, and anxious as a result of being asked to move her car from the handicapped parking space three different times. Complainant averred that, while her till had been over in the past, it had never been short. ROI at Sections 7.2a, 7.2f. S1, S2, and S3 stated that Agency policy requires that any shortage that exceeds $6.00 will be documented and that issuance of a Letter of Counseling is standard operating procedure. C2 stated she has received Letters of Counseling for cash variances. S1 averred that, in addition to the June 18, 2019, Letter of Counseling, she issued Complainant a Letter of Counseling for a till shortage on December 4, 2018. The record contains Letters of Counseling issued to Complainant for overages on June 7, 2017; December 22, 2017; August 31, 2018; December 4, 2018, in addition to the June 14, 2019 Letter of Counseling issued for a shortage. ROI at Sections 7.1j, 7.2b, 7.2c, 7.2d, 7.2e. On August 20, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (physical) and reprisal for prior protected EEO activity when: 1. In November 2008, a Nellis Air Force Base Commissary manager told her that the manager would not hire Complainant or allow her to transfer from the McGuire Air Force Base Commissary; 2. On an unspecified date, a manager refused Complainant’s request for leave, resulting in Complainant being charged AWOL; 3. On an unspecified date, after a customer complained to a manager that Complainant had been rude, the manager verbally disciplined and chastised Complainant in front of the customer and others; 4. On an unspecified date, after a customer complained to a manager about Complainant, the manager chastised Complainant in the presence of customers and her coworkers. 5. On January 24, 2019, a manager yelled at Complainant after Complainant provided service to a customer who was third in line before the customers who were first and second in line; 6. On June 13, 2019, Complainant was directed to move her car from a designated handicapped parking spot, even though Complainant had a valid handicapped parking placard; 7. On June 18, 2019, Complainant was issued a Letter of Counseling after her till was short $38.00. 2021000867 5 The Agency accepted allegations (6) and (7) for investigation. The Agency dismissed claim (1) pursuant to 29 C.F.R. 1614.107(a), because Complainant had raised this issue through the EEO process in 2008 and the matter was resolved when she was hired at the Nellis Air Force Base Commissary. The Agency dismissed allegations (2) through (5) for untimely EEO Counselor contact, as these incidents occurred on or before January 25, 2019, and Complainant did not initiate contact with an EEO Counselor until July 2, 2019. 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 timely requested a hearing. During the hearing process, Complainant filed a petition to reinstate the dismissed claims. The AJ denied the petition to reinstate allegation (1) because Complainant had initiated EEO counseling in 2008 regarding this issue. The AJ reinstated allegations (2) through (5), finding that the Agency had improperly fragmented Complainant’s claim, which consisted of a timely hostile work environment claim consisting of the incidents described in (2) through (7). The Agency filed a motion for summary judgment. In her opposition to the motion for summary judgment, Complainant contended that there were disputed facts that warranted a hearing related to the parking lot incident and the issuance of the Letter of Counseling. Over Complainant's objections, the AJ granted the Agency’s August 4, 2020, motion for a decision without a hearing and issued a decision without a hearing on September 29, 2020. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL On appeal, Complainant contends the AJ erred in granting summary judgment for the Agency, as no reasonable fact finder could conclude that Complainant was not subjected to discrimination. Complainant argues she was subjected to a hostile work environment based on the objective viewpoint of a reasonable person. Further, she maintains that Nellis Air Force Base denied her transfer in 2008 due to her disability. Complainant requests that the Commission reverse the final order and issue a decision finding that she was subjected to discrimination. The Agency did not submit a statement or brief in response to Complainant’s appeal. 2021000867 6 ANALYSIS AND FINDINGS Standard of Review 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). Dismissal As a preliminary matter, Complainant challenges the dismissal of claim 1, regarding the Agency’s refusal to allow her transfer in 2008. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The Commission has held that 29 C.F.R. § 1614.107(a)(1) applies to allegations withdrawn during the EEO Counseling process. See Williams v. U.S. Postal Serv., EEOC Request No. 05950696 (Dec. 19, 1996). The record reflects that Complainant initiated contact with a Nellis Air Force Base EEO Counselor on December 18, 2008, regarding claim 1. ROI at Section 1.1. Complainant argued that, although the EEO Counselor “was instrumental in getting my job back/reinstated with the Commissary, however, I was never given any ‘Back Pay’ or ‘Made Whole’ because of the wrongdoing and Discrimination that I was subjected to.” ROI at Section 1.1, page 13. Upon review, we find that this issue was properly dismissed for stating the same claim as Complainant’s allegations that were withdrawn during the EEO Counseling process. Summary Judgment We must determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. 2021000867 7 The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, while Complainant contends that there are genuine issues of material fact, we find that some are not in dispute and the remainder are not material. For example, it is undisputed that Complainant complained to Human Resources on January 25, 2019, that she met with S1 and S3 on April 23, 2019, and that she was asked to move her car on June 13, 2019. Moreover, although Complainant contends that the Agency failed to consider that she was distressed over being asked to move her car, we find that this is not material. Even if the Agency did not consider whether there were mitigating factors before issuing the Letter of Counseling, this would not affect the outcome of the case, as further discussed below. Accordingly, the AJ properly issued a decision without a hearing. Discrimination Based on Disability and Reprisal To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is 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. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 2021000867 8 To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006); see also, Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra. In the instant case, Complainant alleges she was subjected to discrimination when she was issued a Letter of Counseling. The Agency’s legitimate, nondiscriminatory reason for issuing the Letter of Counseling is Complainant’s till shortage of $38.00. In an effort to show pretext, Complainant disputes that she had a shortage. However, Complainant’s unsupported conjecture is insufficient to establish a genuine dispute regarding whether her till had a shortage. Complainant also argues that, because she was emotionally distraught after being asked to move her car, management should have considered this a mitigating factor and not issued the Letter of Counseling. We find that, even if this is assumed to be true, it does not establish pretext, as preponderant evidence reflects that Commissary policy was to issue a Letter of Counseling for variances of more than $6.00, without consideration of any mitigating factors. Complainant also alleged that she was discriminated against when she was asked to move her car from the handicapped parking spot on June 13, 2019. The Agency’s legitimate, nondiscriminatory reason for asking Complainant to move her vehicle was that the area was going to be used for the case lot sale. Complainant does not dispute the testimony of S3 and C2 that other handicapped parking spaces were available. Therefore, Complainant has not met her burden of establishing that the Agency’s legitimate, nondiscriminatory reason for asking her to move her vehicle was pretextual. Moreover, even assuming for the purposes of summary judgment that the Agency asked her to move her car because of her disability or her prior protected activity, this would be insufficient to establish a prima facie case of harassment. Complainant was not required to move her car to another handicapped parking space on June 13, 2019, and the record reflects that she parked in the same parking space on June 14, 2019. 2021000867 9 Finally, with respect to the incidents where S2 verbally reprimanded Complainant and denied her leave request during a power outage, Complainant has not established any connection between S2’s actions and her disability and/or protected EEO activity. Moreover, anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). What this means in practical terms is that routine work assignments, instructions, and admonishments are by definition neither severe nor pervasive enough to rise to a level of abuse on par with a racial epithet or otherwise engender a hostile work environment. Complainant v. Dep’t of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015). Upon review, the harassment alleged by Complainant is insufficiently severe or pervasive to constitute a hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final action 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. 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 2021000867 10 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. 2021000867 11 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 November 15, 2021 Date