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

Equal Employment Opportunity Commission

Oct 12, 2022

Appeal No. 2022000522 (E.E.O.C. Oct. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reuben D.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2022000522 Hearing No. 451-2018-00253X Agency No. DeCA-00016-2018 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 October 13, 2021,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. BACKGROUND During the period at issue, Complainant worked as a Sales Store Cashier, 2091, GS 3 at the Agency’s Randolph Air Force Base Commissary in Randolph Air Force Base, Texas. On November 27, 2017, Complainant filed a formal EEO complaint. Complainant’s complaint consisted of the following matters: A. Whether the Agency discriminated against Complainant based on sex (male) when the following matters allegedly occurred: 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. 2022000522 2 1. since November 2016, Complainant was subjected to sexual harassment by his co-worker (CW1); 2. on September 29, 2017, Complainant received a Letter of Reprimand; 3. since July 2017, the Store Administrator and the Commissary Officer failed to take action against the Head Bagger who had harassed Complainant; 4. on October 26, 2017, Complainant was assigned to Register 16 in order for his supervisor to “keep an eye on [him];” and 5. as recently as March 9 and 10, 2018, management continued to allow CW1 to sexually harass Complainant. B. Whether the Agency unlawfully retaliated against Complainant for filing the instant EEO complaint when, on April 25, 2018, Complainant was notified that he would be suspended for four calendar days. After an investigation into the complaint, the Agency provided Complainant a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 6, 2021, the AJ issued a Notice of Proposed Summary Judgment (Notice). The AJ found that Complainant failed to establish that discriminatory or retaliatory animus motivated management’s actions towards Complainant. The AJ further found that Complainant had not been subjected to a hostile work environment based on his sex. Regarding Complainant’s allegations of sexual harassment by CW1, the AJ explained that Complainant alleged that CW1’s actions consisted of staring and “ogling” at him even after Complainant had asked CW1 to stop. The AJ further noted that the record reflected that both CW1 and Complainant had complaints against each other. Once management became aware, an investigation was conducted into the matter and management ultimately relocated CW1 to another area away from Complainant. Regarding claims of harassment by the Head Bagger, the AJ determined that Complainant acknowledged that he failed to report to management that the Head Bagger’s harassing conduct (calling Complainant a pedophile) was based on Complainant’s sex. The AJ further determined that the Head Bagger made this remark on one occasion, and consequently, it was an isolated incident that was not severe or pervasive to constitute a hostile work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), where the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable only if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment violate Title VII. 2022000522 3 As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” Regarding Complainant disparate treatment claims, the AJ determined that Complainant was issued the Letter of Reprimand after he had confronted CW1 in the workplace even though his supervisor had already separated CW1 from Complainant. The AJ further determined that Complainant was assigned to a different register to separate him from CW1 and there was no evidence, beside Complainant’s speculation, that this assignment was based on Complainant’s sex. Finally, the AJ concluded that Complainant failed to establish that he was retaliated against when his supervisor notified him of the proposed four-day suspension in March 2018, which was one month after his supervisor learned about Complainant’s EEO activity in April 2018. Nevertheless, the AJ also determined that management had articulated legitimate, non- discriminatory reasons for the proposed notice - Complainant’s failure to follow instructions by confronting CW1 even though he was told to work away from her. Complainant did not submit any statements in opposition to the AJ’s Notice of proposed summary judgment. Consequently, on October 6, 2021, the AJ issued a decision by summary judgment in favor of the Agency, incorporating by reference the findings in the August 6, 2021 Notice. On October 13, 2021, the Agency issued a final decision adopting the AJ’s finding of no discrimination. The instant appeal followed. Complainant did not submit any statements or augments on appeal. 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. 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. 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. 2022000522 4 Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Here, we find no error on the part of the AJ in concluding that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Accordingly, we AFFIRM the Agency’s final order adoption 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. 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. 2022000522 5 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. 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 12, 2022 Date