Wen Y.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120171855 (E.E.O.C. Nov. 29, 2018)

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

Wen Y.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 0120171855

Hearing No. 480-2014-00836X

Agency No. AAFES14013

DECISION

On April 27, 2017, 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
May 23, 2017, final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Food Service Foreman
(Popeye’s restaurant) at Edwards Air Force Base in California.

On December 20, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of age (57) when she was subjected to a hostile work
environment and disparate treatment in the following incidents:

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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1. Management failed to provide her with equivalent training, scheduling, support,
guidance, communication, feedback, or counseling provided to other workers and
supervisors;

2. Her immediate supervisor issued her written counseling documents without further
discussion, explanation, or guidance;

3. Her immediate supervisor falsified her training records; and

4. On August 22, 2013, management terminated her during her probationary period.

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 requested a hearing. Over
Complainant’s objection, the AJ assigned to the case granted the Agency’s January 7, 2015, motion
for a decision without a hearing and issued a decision without a hearing on March 13, 2017. In
issuing the decision, the AJ found no discrimination regarding claims (1) - (3) because
Complainant failed to present any corroborating evidence to support her allegations. With regard
to claim (4), the AJ found that Complainant was terminated because of management’s negative
perception regarding her performance and customer service skills, which rendered her undesirable
as a permanent employee. Although Complainant attempted to offer evidence of pretext, the AJ
determined that such evidence was insufficient to rebut the Agency’s articulated legitimate,
nondiscriminatory reasons. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determined that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weight the
evidence, but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the nonmoving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the nonmoving party’s favor. Id. at 255. An issue of fact
is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
nonmoving 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 fact is “material” if it has the potential to affect the outcome
of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding, an AJ may properly consider
summary judgment only upon a determination that the record has been adequately developed for
summary disposition.
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In this case, we find that even if the evidence and arguments submitted by Complainant on appeal
are considered, we still find a decision without a hearing is appropriate. Although Complainant
references inconsistencies in statements by various witnesses, he has not specifically identified or
shown any inconsistencies, let alone material inconsistencies.

On appeal, Complainant alleges that the Agency failed to adequately train her and scheduled her
for less hours than her colleagues. She also alleges that the Agency’s witnesses contradicted
themselves regarding material facts and provided statements that was inconsistent with their own
proffered reasons, thereby raising credibility issues.

In response, the Agency argues that Complainant failed to establish a prima facie case of
discrimination because she failed to show that similarly situated people were treated more
favorably than her. The Agency also contends that even if a prima facie case exists, Complainant
failed to proffer sufficient evidence to demonstrate pretext.

The adjudication of a complaint of discrimination alleging disparate treatment under the ADEA
follows the McDonnell Douglas three-step evidentiary analysis. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case. Second, the
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, once the Agency
has articulated its reason, Complainant must show that the Agency's reason was pretextual, that is,
it was not the true reason for its action. Complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited
reason. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 143 (2000); St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Assuming arguendo that Complainant established a prima facie case of age discrimination, the
Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding Complainant’s
allegation in claim (1), the Agency explained that it provided Complainant with a combination of
in-class, online, and on-the-job training throughout her probationary period. The Agency also
noted that Complainant was scheduled for at least 20 hours of work a week, except for a few
occasions, and had similar schedules as other foremen. For claim (2), the Agency denied that
Complainant’s supervisor handed Complainant pre-written counseling statements without further
discussion, explanation, or guidance. The Agency explained that the purpose of managerial
counseling was to put Complainant on notice of the deficiencies in her work performance. The
Agency noted that it gave her ample opportunities to respond to each counseling, as evidenced by
her handwritten comments on each counseling statement. Regarding claim (3), the Agency
categorically rejected Complainant’s allegation that her supervisor falsified her training record. In
rejecting Complainant’s allegation, the Agency noted that she failed to offer any evidence to
corroborate her allegation. For claim (4), the Agency explained that management decided to
remove Complainant because she failed to demonstrate improvement despite additional training.
Management averred that Complainant’s deficient work performance made her undesirable as a
permanent employee.
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Upon careful review of the AJ's decision and the evidence of record, as well as the parties'
arguments on appeal, we conclude that Complainant has failed to demonstrate pretext with regard
to the Agency’s actions. Regarding claim (1), we agree with the Agency that Complainant has not
shown she was provided with either inadequate or inequitable training. We note that Complainant
received the standard five-week training program for all employees. She also received additional
mentoring from her immediate supervisor and a colleague. As for Complainant’s assertion that
management should have sent her offsite for a five-week restaurant training program, we note that
neither Popeye’s operating manual nor franchisee agreement require the Agency to send every
employee to a five-week offsite training course. Complainant has not shown that she was treated
less favorably than other similarly-situated employees with regard to training.

Regarding Complainant’s contention that she received less favorably treatment than younger
employees with regard to scheduling, we find no persuasive evidence supporting that assertion.
The record reflects that Complainant received at least 20 hours a week for 16 out of her 20 weeks
of employment with the Agency. While some workers received more training than Complainant,
they were not similarly situated since they worked the day shift. Also, unlike the comparative
employees cited by Complainant, she was a supervisor. We agree with the Agency that it had no
obligation to schedule Complainant for shifts outside of her assigned shift solely for the purpose
of ensuring she received the same number of hours of training as the day shift employees. There
is no indication that age was a factor in training decisions.

Regarding claims (2) and (3), we agree with the AJ’s finding of no discrimination. Although
Complainant asserts on appeal that she was given pre-written counseling statements without
further discussion, explanation, or guidance, the record reflects that her immediate supervisor
provided detailed guidance in writing and orally. Complainant was also given the opportunity to
respond to each counseling statement. Furthermore, we find no evidence to support Complainant’s
allegation of falsification of her training record.

Finally, regarding claim (4), we find that Complainant failed to demonstrate pretext in the
Agency’s decision to remove her from federal service. Although Complainant subjectively
believes that her work performance was adequate, the record contains negative assessments from
both customers and management officials. Therefore, we agree with the Agency that Complainant
failed to demonstrate proficiency in learning her duties as a foreman and providing satisfactory
customer service. Complainant has not shown that similarly situated persons were treated
differently. Consequently, Complainant failed to rebut the Agency’s articulated legitimate,
nondiscriminatory reasons for her removal.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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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 (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.
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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

November 29, 2018
Date