[Redacted], Reina D., 1 Complainant,v.Lloyd J. Austin, III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Feb 16, 2021

Appeal No. 2020005277 (E.E.O.C. Feb. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reina D.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2020005277 Agency No. DLAP-18-0197 DECISION On September 17, 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 August 20, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race and/or reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as a GS- 0301-13 Supervisory Customer Relationship Specialist/Branch Chief in the Subsistence Customer Operations Directorate, DLA Troop Support in Philadelphia, Pennsylvania. Complainant’s first-line supervisor was the Garrison Feeding Division Chief, Subsistence Customer Operations (S1), and her second-line supervisor was the Customer Operations 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. 2020005277 2 Director, Subsistence Supply Chain (S2). Complainant identified her race as Black. Complainant stated that she engaged in protected EEO activity in April 2014 and in July 2016. According to Complainant, in July 2016, she contacted an EEO Counselor, alleging discrimination by S1. Complainant averred that the July 2016 issue culminated in mediation. Complainant was the rating official responsible for rating the performance of her seven subordinates, and S1 was the reviewing official. As reviewing official, S1 was responsible for approving the ratings issued by Complainant and the other Branch Chiefs she supervised. S1 supervised six Branch Chiefs, including Complainant. In early April 2018, Complainant submitted performance ratings for her subordinates from the period from April 1, 2017, through March 31, 2018. According to S1, she had a number of concerns with the performance ratings submitted by Complainant: (1) Complainant rated all employees “outstanding,” the highest possible rating; (2) employee input was missing for some of the ratings; (3) generic or repetitious narratives that did not justify an “outstanding” rating; and (4) the inclusion of a “strange” statement about the master labor agreement. S1 characterized the following statement, which was inserted by Complainant under each performance element, as strange: This performance standard is not defined and written at the outstanding level IAW Article 18, Section Three of Master Labor Agreement requirements. Nevertheless, the employee exceeds the above standard as written and is hereby rated outstanding in (name of Performance Element) based on performance of customer support operations as specified in the position description of record. Report of Investigation (ROI) at 207. In April 2018, S1 contacted Complainant and asked her to make changes to the performance ratings. Complainant declined to make changes as requested. On April 19, 2018, S1 emailed Human Resources, asking for assistance. S1 stated that one of the Branch Chiefs had submitted ratings of outstanding for each job element for each of her subordinates, had provided the same generic narrative to justify the rating, and had included the statement about the master labor agreement under each job element. The Chief, Organizational Alignment, Command Support Office (HR1) responded to S1’s email on April 19, 2018, stating that more detailed justifications for the ratings were required, as simply stating that an employee exceeded the standard was not enough to justify an “outstanding” rating. HR1 suggested that S1 ask the Branch Chief to provide several examples of significant accomplishments to justify the outstanding rating for each employee. S1 emailed Complainant on May 8, 2018, asking her to review the performance ratings and adjust them to reflect the work performed measured against the benchmark of the performance standards. S1 stated that Complainant would need to revise the narratives to detail significant outcomes that would support an “outstanding” rating or adjust the ratings to “fully successful.” Complainant did not make the requested changes. 2020005277 3 On May 25, 2018, S1 emailed Human Resources, asking if it was possible for a reviewing official to change a performance rating if the rating official would not. On June 5, 2018, HR1 responded to S1, stating that the reviewing official must approve of the ratings. HR1 noted that it would be ideal for the rating official and the reviewing official to work together to find a solution. On June 18, 2018, S1 met with Complainant and informed her that she was being removed as the rating official for her subordinates for the period in question. S1 reviewed the performance of Complainant’s subordinates, rating five employees “outstanding” and rating two employees “fully successful.” S1 removed the statement about the master labor agreement from the performance ratings. Complainant stated that she did not revise the narratives or the ratings because her employees “far exceeded” the written criteria for the fully successful level. ROI at 198. According to Complainant, she rated her employees in accordance with their performance standards, and all seven employees performed at the outstanding level. Complainant alleged that her race was a factor in removing her as the rating official, noting that six of her seven employees are Black and that S1 had a problem with how Complainant, who is Black, rated each employee on her majority-Black team as outstanding. S1 stated that she discussed performance ratings with all Branch Chiefs, and she stated that she asked some ratings to be changed as they were initially too high or too low. On June 20, 2018, S1 issued Complainant her performance appraisal for the period from April 1, 2017, through March 31, 2018. Complainant was evaluated on five elements: leading people, leading teams, work management, performance management, and customer service. In each performance element, S1 rated Complainant three, or fully successful, resulting in an overall fully successful rating. S1 stated that Complainant’s team works together and achieves goals, but she stated that Complainant would not communicate with her about problems with her team and that she only learned with issues from people outside of the team. S1 indicated that often the first time she would learn about a problem was when she received an email from one of Complainant’s customers stating that Complainant had not followed up or provided answers to solve the problem. S1 averred that Complainant did not foster cooperation with internal and external customers or provide S1 with updates about her team, noting that she had to personally contact members of Complainant’s team to see if they were safe when they were affected by hurricanes during the rating period. Complainant alleged that S1 did not discuss any of these issues with her during the rating period. Complainant stated that S1 did not communicate her expectations with her, conduct any mid- term performance reviews, or tell Complainant what, if anything, she needed to do to improve her performance. Complainant also averred that the standards in her performance plan are poorly written and are not Specific, Measurable, Attainable, Relevant, and Timely (SMART) in accordance with Agency policy. S2 agreed that the performance elements were not SMART, but he stated that was appropriate because the organization is service-oriented. According to S2, the elements were well written and applied to the type of work performed by the Branch Chiefs. 2020005277 4 According to S1, she did not conduct in-person progress reviews for any Branch Chiefs during the rating period because hurricanes had caused operational issues at the time the mid-year progress reviews were due. S1 noted that she did offered to discuss the progress reviews in person. The record contains an October 30, 2017, email from S1 to Complainant with the subject line “Progress Review.” In the email, S1 stated that Complainant had been “performing in accordance with the performance elements” in her performance plan and asked Complainant to let her know if she would like to meet to discuss in detail. ROI at 88. The record does not contain a reply from Complainant. Complainant alleged that all her coworkers were treated more favorably than she was. According to Complainant, S1 had informal discussions with the other Branch Chiefs and may have had formal performance discussions with some of them as well. S1 stated that, when she tried to discuss problems or issues with Complainant’s team, Complainant tended to respond with a one- word answer that cut off further discussion. According to S1, the other Branch Chiefs speak with her regularly about issues. On August 3, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and reprisal for prior protected EEO activity when: 1. On June 18, 2018, S1 temporarily removed Complainant’s authority as the rating official for the performance appraisals of her subordinates for the period from April 1, 2017, to March 31, 2018; and 2. On June 20, 2018, S1 rated Complainant fully successful in all five elements of her performance appraisal for the period from April 1, 2017, to March 31, 2018. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found that Complainant did not establish that she was subjected to an adverse employment action with respect to either claim. The Agency further found that, assuming arguendo that Complainant was subjected to an adverse employment action, she could not establish a prima facie case of discrimination because she did not show that she was treated differently than a similarly situated employee who was not a member of her protected class. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2020005277 5 CONTENTIONS ON APPEAL On appeal, Complainant contends that she established a prima facie case of discrimination.2 According to Complainant, the adverse action was the issuance of a less than “outstanding” rating. Complainant argues that S1 did not communicate at any time that her performance was not at the outstanding level, noting that S1 did not hold performance discussions with her or conduct a formal performance review at any point during the rating period. Complainant also contends that she did not know that she would be evaluated based on customer emails. Complainant avers that a white Branch Chief (C1) was treated more favorably than she was, as S1 held performance discussions with C1 during the rating period and rated C1 as “outstanding.” The Agency did not submit a statement or brief in response to Complainant’s appeal. 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”). 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). 2 In her statement, Complainant appears to raise sex (female) as a basis for her EEO complaint for the first time. The Commission has held that, absent a compelling reason, a complainant may not add a new basis on appeal. See Valdez v. US Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000). Because Complainant has not identified a reason for adding sex as a basis for her complaint for the first time on appeal, the Commission will not consider sex as a basis. 2020005277 6 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). The Agency’s legitimate, nondiscriminatory reasons for removing Complainant as the rating official for the rating period were that she refused to add to the narratives to justify the outstanding ratings or change the ratings and refused to remove the statement about the master labor agreement, despite multiple requests from S1. As evidence of pretext, Complainant suggested that S1’s real issue with the rating was that Complainant, who is Black, had rated her majority-Black team as outstanding across the board. However, this does not establish pretext. S1 did not tell Complainant that she had to reduce the ratings, but she told her that further justification was needed for outstanding ratings. Moreover, when S1 took over as the rating official, S1 rated five of the seven employees as outstanding. Complainant has not established by preponderant evidence in the record that the Agency’s legitimate, nondiscriminatory explanation is a pretext for discrimination based on race and/or reprisal. Here, the Agency’s legitimate, nondiscriminatory reason for rating Complainant fully successful was that, although her team worked together and achieved its goals, Complainant did not always communicate potential or actual issues or problems with S1. As evidence of pretext, Complainant argues that the performance standards were poorly written and were not SMART and that S1 did not communicate her performance expectations with Complainant or discuss her performance during the rating period. Regarding the performance plan, although S2 agreed that the performance standards were not SMART, he stated that the standards were clear and could not be written to be SMART because of the service-oriented work. The record reflects that S1 asked Complainant if she wanted to have an in-person progress review and that Complainant did not respond. The preponderance of the evidence reflects that S1 and Complainant did not have informal discussions about performance because Complainant would not tell S1 about potential issues and because Complainant would forestall other conversations with one-word answers. Although Complainant contends that she was not on notice that customer emails would be considered in her performance evaluation, there is no evidence in the record that Complainant was singled out in this regard. We find that Complainant has not established pretext for discrimination by preponderant evidence. 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 decision finding no discrimination. 2020005277 7 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. 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). 2020005277 8 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 February 16, 2021 Date