Wallace Dillard, a/k/a Chris G.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Jul 12, 2017

0120161386 (E.E.O.C. Jul. 12, 2017)

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

Wallace Dillard, a/k/a
Chris G.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Appeal No. 0120161386

Agency No. DECA-00129-2014

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated February 22,
2016, finding no discrimination with regard to his 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, we AFFIRM the Agency’s final
decision finding no discrimination.

BACKGROUND

In his complaint, filed on August 14, 2014, Complainant alleged discrimination based on
disability and in reprisal for prior EEO activity when:

a. On April 8, 2014, managers at other commissary locations were notified to monitor his
actions and restrict his access to the union office; and
b. On April 23, 2014, base police were called to the Norfolk Commissary in an attempt to
have him removed from the commissary.2

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.
2 Although Complainant initially alleged discrimination based on genetic information, he
withdrew that basis during the investigation.
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After completion of the investigation of the complaint, Complainant did not request a hearing.
The Agency issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut.3

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time period, Complainant was employed by the
Agency as a Meat Cutter, WG-7407-07 at the Langley Air Force Base Commissary, Hampton,
Virginia.

The Agency indicated that on April 2, 2014, its Human Resources (HR) Specialist issued an
email to all Zone 28 supervisors regarding union stewards and officials entering commissary
grounds for official union purposes. The HR Specialist stated that she was previously informed
that union stewards were being allowed to enter into the commissary without being required to
sign in or out on the visitor’s log in violation of the Agency’s policy. Specifically, the HR
Specialist indicated that in March, 2014, the Norfolk Assistant Commissary Officer informed her
that Complainant was in the Norfolk Commissary using computers and entering secure areas
without authorization. The HR Specialist stated that she did not mention Complainant by name
in her April 2, 2014 email and her main intent was to remind supervisors about security
procedures and never required them to restrict anyone’s access or monitor their actions. The HR
Specialist indicated that she was not aware of Complainant’s disability or his prior EEO activity
and denied discriminating against him.

The Norfolk Commissary Officer indicated that he received the HR’s email, described above, on
April 8, 2014. On April 23, 2014, Complainant entered the Norfolk office in a union official
capacity and not as a Langley Commissary employee. The Norfolk Commissary Officer asked

3 We note that on September 22, 2014, the Agency dismissed the complaint for failure to state a
claim pursuant to 29 C.F.R. § 1614.107(a)(1). Upon Complainant’s appeal, the Commission, in
EEOC Appeal No. 0120150323 (March 19, 2015), reversed the Agency’s dismissal and
remanded the complaint for further processing. Accordingly, the Agency properly accepted and
investigated the complaint and issued its final decision which is before us.
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Complainant to sign in but Complainant replied in a loud and rude tone that he would not sign in.
The Norfolk Community Officer, after repeated unsuccessful attempts to have Complainant sign
in, called the base police to come to the store. The police refused to take any action since the
incident involved an administrative matter. Complainant acknowledged that the Norfolk
Commissary Officer informed the base police that Complainant was not being disruptive or
causing a disturbance. The Norfolk Commissary Officer stated that he was not aware of
Complainant’s disability or his prior EEO activity and denied discriminating against him.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that he was denied a
reasonable accommodation. We find that Complainant failed to show that he was treated less
favorably than a similarly situated employee under similar circumstances or that the Agency’s
reason for requiring him to sign in was a pretext for discrimination. Based on the foregoing, we
find that Complainant has failed to show that the Agency’s action was motivated by
discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
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(FedSEP). See 29 C.F.R. § 1614.403(g). 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
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

July 12, 2017
Date