Tiffanie M.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Dec 13, 2016

0120142818 (E.E.O.C. Dec. 13, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tiffanie M.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 0120142818

Agency No. AAFES-14-004

DECISION

Complainant filed an appeal from the July 3, 2014, final Agency decision (FAD) 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Store Manager,
Main Express, at the Barksdale Army and Air Force Base Exchange Service at Barksdale Air
Force Base, Louisiana. On July 23, 2012, Complainant’s supervisor (S1-1) placed
Complainant on a Performance Improvement Plan (PIP) for 90 days for not performing at a
satisfactory level. Complainant submitted a response challenging the PIP on August 16, 2012.
On September 26, 2012, S1-1 re-issued the PIP after he and Complainant were unable to meet
on a weekly basis as previously specified. On January 14, 2013, S1-1 issued Complainant an
Advance Notice of Separation for Unsatisfactory Performance, proposing to remove
Complainant from employment. Complainant responded, and S1-1 withdrew the proposed

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.
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removal. On May 13, 2013, S1-1 issued Complainant a second PIP for 60 days for not
performing satisfactorily in her position.

On July 25, 2013, S1-1 issued Complainant an Advance Notice of Demotion for Unsatisfactory
Performance, proposing to demote her to a Food Service Foreman position. On September 9,
2013, Complainant’s new supervisor (S1-2) issued Complainant a Final Notice of Demotion,
upholding the proposal to demote Complainant. Complainant was demoted to a Supervisory
Store Assistant position, effective September 28, 2013. On September 18, 2013, S1-2
amended the demotion decision to reflect a new position, Store Manager, Military Clothing
Store, effective September 28, 2013.

On October 15, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), color (Black),
age (58), and in reprisal for prior protected EEO activity when:

1. Her supervisor (S1-1) issued her two Performance Improvement Plans (PIP) for
Unsatisfactory Performance; and

2. S1-1 demoted Complainant to Store Manager, effective September 28, 2013.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ).2 Complainant requested a
FAD. In accordance with Complainant’s request, the Agency issued a FAD, pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with respect to the PIPs, the Area
Manager (M1) stated that Complainant was placed on PIPs because of missed suspenses,
excessive “holes” in merchandise, and overall unsatisfactory appearance of the store.
Furthermore, M1 confirmed that she supported S1-1’s decision to issue Complainant a PIP
because of what she observed during visits to Complainant’s facility in 2012 and 2013, where
she saw issues that she did not see at other facilities. M1 asserted that she spoke to
Complainant and S1-1 about the large number of items of merchandise of which Complainant’s
store was out of stock, and about the condition of Complainant’s facility. In addition, M1
stated that she put Complainant in touch with personnel in Headquarters to review stock levels,
paired her up with other facility managers to assist with challenges, sent Complainant to
training, and requested assistance from region staff. Nonetheless, M1 continued to observe
problems at Complainant's facility such as missing labels, merchandise not fronted, and holes
of merchandise. When she asked Complainant to explain the reasons for substandard areas,
Complainant’s response was that the truck was late or the merchandise was not in stock at the

2 The record indicates that S1-1 retired from the Agency in August 2013, and did not submit an
affidavit for the investigation.
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warehouse. M1 noted that during the PIP, Complainant was given specific feedback on how
her performance was not meeting expectations.

Regarding the demotion, S1-2 stated that she based her decision on the PIP, notes from the
PIP, emails from S1-1 and Complainant, and her official record. In addition, S1-2 asserted
that she considered Complainant’s request for reconsideration of the demotion; however,
Complainant never met the requirements set forth in the PIP and offered excuses that blamed
others for the unsatisfactory performance. S1-2 added that she felt Complainant should remain
a pay-banded manager and a facility manager because of her tenure. S1-2 stated that the
Military Clothing Store Manager position became available, and S1-2 amended the final notice
to downgrade Complainant to the position to provide a position better suited to Complainant’s
abilities as a manager.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the evidence shows that she was subjected to
discrimination and reprisal. Complainant claims that S1-1’s discriminatory conduct vilified her
work ethic and character. Complainant contends that she was falsely accused of performance
deterioration and that S1-1’s intent was to get rid of her. Accordingly, Complainant requests
that the Commission reverse the FAD.3

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a

3 The Commission notes that Complainant submitted two additional untimely briefs in support
of her appeal, raising new claims. The Commission will not address these new claims as they
were raised for the first time on appeal. Complainant is advised that if she wishes to pursue
these claims, raised for the first time on appeal, she should initiate contact with an EEO
counselor at the Agency if she has not already done so.
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preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination and reprisal, the Commission finds that Complainant failed to present evidence
to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In particular, as to
her placement on the PIPs, M1 stated that she supported S1-1 placing Complainant on a PIP
because her performance was substandard, as evidenced by missed suspenses, excessive holes
and out-of-stock items throughout the store, lack of cleanliness, unsatisfactory appearance of
the store, and overall lack of store execution. ROI, at 246-47. M1 confirmed that she did not
observe any other store in such poor shape. Id. at 247. M1 affirmed that she attempted to
assist in Complainant’s performance improvement by putting her in touch with Headquarters to
review stock levels, pairing her up with other facility managers to help with her challenges,
sending her to training, and had region staff assist her. Id. M1 noted that the July 2012 PIP
was rescinded and reissued in September 2012, after S1-1 and Complainant were unable to
meet during the first five weeks of the PIP. Id. at 57. In December 2012, S1-1 issued
Complainant an “Unsatisfactory” PIP final assessment, and she was placed on a second PIP in
May 2013 based on her continued deficient work performance. Id. at 58, 72.

With regard to her demotion, S1-1 issued Complainant the Advance Notice of Demotion for
Unsatisfactory Performance on July 25, 2013, based on her failure to improve during the PIP.
ROI, at 85-87. In September 2013, S1-2 became Complainant’s new supervisor, and S1-1
briefed S1-2 on Complainant’s performance deficiencies and lack of improvement. Id. at 89.
S1-2 reviewed Complainant’s PIP, notes from the PIP, Complainant’s reply to the Advance
Notice, and Complainant’s official performance record prior to issuing the Final Notice of
Demotion. Id. at 255. S1-2 determined that Complainant never met the requirements of the
PIP and only offered excuses blaming others. Id. S1-2 maintained that the details of the PIP
were basic retail management expected of every facility manager, and that part of the challenge
of all managers is to overcome obstacles to achieve results. Id. As Complainant failed to
successfully complete the second PIP, S1-2 issued the Final Notice of Demotion on September
9, 2013. Id. at 88-90. S1-2 later amended the Notice to demote Complainant to the Store
Manager position at the Military Clothing Store to keep Complainant as a pay-banded manager
and to reduce the amount of her pay reduction. Id. at 91-92. M1 concurred with the decision
to demote Complainant believing that the position would be a better fit for Complainant. Id. at
249.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing. Therefore, the
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Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no evidence that Complainant’s protected classes were a factor in any of the
Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate
by a preponderance of the evidence that the Agency’s reasons were not the real reasons and
that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed
to carry this burden. As a result, the Commission finds that Complainant has not established
that she was subjected to discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
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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

December 13, 2016
Date