Willy B.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.Download PDFEqual Employment Opportunity CommissionDec 4, 20180120172494 (E.E.O.C. Dec. 4, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willy B.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 0120172494 Agency No. DeCA-00091-2016 DECISION On July 18, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency decision (FAD) dated July 6, 2017, concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Assistant Commissary Officer (Temporary), GS-1144-11, at the Imperial Beach Commissary in San Diego, California, before returning on December 25, 2016, to his regular job of Grocery Department Manager, GS-1144-09 at the same commissary. On October 7, 2016, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against him based on his race (Black) when: 1. On August 25, 2016, he received a rating of Fully Successful on his performance evaluation (instead of a higher rating) for the period of January 1, 2016 – June 30, 2016; and based on his race and reprisal2 for EEO activity under Title VII, when: 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 As recognized in the FAD, Complainant added the basis reprisal in his investigatory declaration. 0120172494 2 2. On December 15, 2016, he was issued a completely new performance plan; and 3. On January 8, 2017, he was not competitively selected for the permanent position of Assistant Commissary Officer, GS-1144-11 at the Imperial Beach Commissary. Following its investigation of the complaint, the Agency provided Complainant with the investigative report and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request dated April 15, 2017, to elect a FAD without a hearing, the Agency issued a FAD.3 In its FAD, the Agency found discrimination on issue 1, and no discrimination on issues 2 and 3. As relief for issue 1, the Agency ordered management to change Complainant’s performance rating to Excellent, and give him a performance award of $1,000. In support of its finding of no discrimination on claims 2 and 3, the Agency points to the following pertinent evidence developed during the investigation. With regard the new performance plan issued to Complainant in December 2016, Complainant concedes that other Commissary managers also got new performance plans in December 2016/January 2017, and that he did not believe anyone was treated favorably. Regarding issue 3, Complainant applied for the permanent position of Assistant Commissary Officer, GS-1144-11 at the Imperial Beach Commissary in the second or third week of September 2016, and was acting therein since September 4, 2016. Complainant and the selectee (White) were certified as qualified by Agency Human Resources to be considered for selection. On December 8, 2016, a panel of three via telephone interviewed Complainant and the selectee. The panel was comprised of the Panel Chair (White), who in January 2017, was designated to be the selecting official, Panel Member 1 (White), and Panel Member 2 (African-American). Complainant and the selectee were asked the same questions. Each panel member independently scored Complainant and the selectee based on their resumes and interviews. The panel unanimously recommended the selectee for selection. The selecting official stated that he chose the selectee based on the unanimous recommendation of the selection panel of which he was a part. 3 On June 12, 2017, Complainant requested a hearing, and then withdrew this request on March 16, 2018, writing he wanted to proceed with the instant appeal. Accordingly, on July 19, 2018, an AJ dismissed Complainant’s hearing request. 0120172494 3 All three panel members scored the selectee’s resume higher than Complainant’s, albeit two were close. About 15% of the resume score was based on appraisal ratings for 2014, 2015, and 2016, i.e., one point for each Fully Successful rating, two for each Excellent rating, and three for each Outstanding rating. All three panel members gave Complainant scores based on Excellent appraisal ratings for all three years, and gave the selectee scores based on an Outstanding rating for his 2016 appraisal, and zero for 2014 and 2015. All three panel members scored the selectee’s interview significantly higher than Complainant’s. The panel members explained why they judged the selectee as more qualified than Complainant. The Panel Chair stated that the selectee’s resume showed his experience in all store departments, including managing, holding accountable and increasing sales in all departments, and backed up his resume with more detail in his interview. He stated Complainant’s resume was not updated in several areas, and his interview responses did not show the depth of knowledge and leadership experience reflected in his resume. He stated that Complainant’s responses to interview questions were relatively short and incomplete, and did not give the sense he was confident and knowledgeable in operations or leadership. Panel Member 2 indicated that for him, the deciding factor was the interviews. He stated that at the interview the selectee was knowledgeable and engaging, and answered all questions without additional prodding. He stated Complainant was not prepared for his interview – his answers were incomplete or he did not provide an answer at all, and Complainant did not understand a question about performance management. He stated that while Complainant’s resume reflected his acting job, it did not convey well the experience he gained therein, nor did his interview. Likewise, Panel Member 3 lauded the selectee’s resume and interview, and stated Complainant did not seem prepared for the interview in that he did not go into detail and some of his responses were vague. Complainant filed the instant appeal from the Agency’s final decision. Complainant argues that the remedies the Agency awarded are “…insufficient for the pain and suffering I endured relative to the ordeal of having to file an EEO complaint to get this resolved and the humiliation that I endured during the entire EEO process” and his “pain and suffering has caused increases in medication, due to uncontrollable sugar levels over the past year due to on- the-job stress and the entire ordeal of the EEO process.” These arguments were made in July 2017, and Complainant received the performance evaluation in issue 1 in August 2016. In May 2018, Complainant emailed the Commission that while the Agency changed his rating in the above performance evaluation to Excellent, this was not reflected in his official personnel file (OPF). He makes no argument on issue 2. On issue 3, Complainant argues the merits of his case. He discusses his work activities when he was the Acting Assistant Commissary Officer, and previously contended in a rebuttal declaration that he has never been a person of many words, just actions. He makes arguments about the composition of the interview panel, and contends that management violated Agency policy by making the selecting official to be part of the interview process. 0120172494 4 ANALYSIS AND FINDINGS Claim 1 – Remedies We find that on appeal, Complainant raises the remedy of compensatory damages arising out of the pain and suffering caused by his discriminatory appraisal in issue 1. In Reid v. USPS, EEOC Appeal No. 01992856 (Aug. 25, 2000), a complainant wrote in his complaint that his receipt of a notice of removal right before Christmas caused great stress and pain to himself and family. The Commission construed this as being a request for compensatory damages, explaining that a complainant need not use legal terms of art such as “compensatory damages,” but merely use words or phrases to put the agency on notice that either pecuniary or non-pecuniary loss has incurred. A complainant may raise compensatory damages at any time during the administrative process, up to and including the appeal stage, but not thereafter. Clarkson v. Navy, EEOC Appeal No. 01982428 (Mar. 31, 1999). Accordingly, as set forth in the order below, the Agency must calculate Complainant’s compensatory damages, if any. We advise the parties that compensatory damages are not available for stress caused by how an Agency litigates its defense against an EEO complaint. Bernetta B. v. Education, EEOC Appeal No. 0120161513 (Aug. 23, 2017); Appleby v. Army, EEOC Appeal No. 01933897 (March 4, 1999). Complainant contends that the Agency did not comply with the relief ordered in the FAD because his official personnel folder does not reflect his change in rating. We will address this matter in the Order below. Claim 2 and 3 – Finding of No Discrimination As Complainant does not contest the Agency’s finding of no discrimination on issue 2, we affirm the Agency’s conclusion that no discrimination was established, noting Complainant conceded that the other Commissary managers also got new performance plans in December 2016/January 2017, and that he did not believe anyone was treated favorably. To prevail on issue 3, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he 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 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). 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). 0120172494 5 The Agency articulated a legitimate, nondiscriminatory reason for choosing the selectee – the interview panel, which also considered Complainant and the selectee’s resumes, unanimously assessed the selectee to be better qualified, and the selecting official agreed. They all explained their assessments, giving detail. Complainant argues that the composition of the interview panel was suspicious. The facts he points to in support of this are not persuasive. Likewise, Complainant argues that management violated Agency policy by using the selecting official as part of the interview process. He does not point to any documentation to support this. The record contains the Agency’s Merit Staffing Plan Manual. It provides that “[s]electing officials are responsible for using interview panels properly. Although panels may be convened to interview candidates and recommend selections, the selecting official is ultimately responsible for making the final selection decision.” Report of Investigation, at bates stamp 288 (stamp in upper right corner). This language does not support Complainant’s claim of a violation of Agency policy. Complainant has not shown that the real reason he was not selected was discrimination, rather than the assessment by the selecting official that the selectee was better qualified. The FAD is MODIFIED. The Agency shall comply with the Order below. ORDER 1. The Agency shall gather sufficient information to calculate Complainant's entitlement to compensatory damages with respect to the finding of discrimination on issue 1. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and provide all relevant information it requests. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission, and provide Complainant payment of any amount it calculates he sustained. The Agency shall complete these action within 125 calendar days of the date of this decision. 2. To the extent the Agency has not already done so, it shall change Complainant’s rating to Excellent in the performance evaluation subject to issue 1, give him a connected $1,000 performance award, and adjust his OPF to reflect the Excellent rating and award. The Agency shall expunge the version of the appraisal at issue with a Satisfactory rating from Complainant’s OPF. The Agency shall complete these actions within 30 calendar days of the date of this decision. As explained in the order below entitled "Implementation of the Commission's Decision,” the Agency must submit evidence of compliance via the Federal Sector EEO Portal (FedSEP). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. 0120172494 6 Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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. 0120172494 7 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 4, 2018 Date Copy with citationCopy as parenthetical citation