0120141527
07-27-2016
Natalie F.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Natalie F.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120141527
Agency No. DECA-00189-2012
DECISION
On March 7, 2014, Complainant filed an appeal from the Agency's February 11, 2014,
final decision 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. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant timely raised her dissatisfaction with the processing of her EEO complaint; and (2) whether Complainant established that the Agency subjected her to disparate treatment and hostile work environment harassment on the bases of race (African-American), national origin (African-American), or color (Black) in connection with a comment about the Underground Railroad, an incident involving her cash till, and the monitoring of her work.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Store Associate (Cashier), GS-1104-04, at the Agency's San Diego Naval Base Commissary in California. Complainant's supervisory chain of command included the Supervisory Store Associate
(S1 - Asian, Filipino, unknown), the Store Administrator (S2 - Caucasian, unknown, White), and the Store Director (S3 - Caucasian, American, White). On January 3, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), national origin (African-American), and color (Black) when:2
1. In August 2011, S2 made a comment to her about keeping a secret "like the Underground Railroad."
2. On June 16, 2012, S1 issued her a memo notifying her that her cash till was found to be short by $106.50 on June 15 and that this was her eighth variance for the rating period. According to the memo, variances (overages and shortages) were part of a cashier's performance standard and a copy of the memo was placed in the cashier's employee file.
3. On June 23, 2012, S1 tried to intimidate her by reminding her about the cash till shortage, comparing it to a coworker's cash till shortage, telling her that she gave money back to customers instead of putting it in the cash till, and telling her that her lawyer could obtain a copy of the cash till shortage document if needed.
4. On several occasions, S1 monitored her by watching her complete transactions with African-American customers and assigning her to certain cash registers near the Cash Cage, Customer Service, S1's office, or cashiers that S1 favored.
The EEO Investigator attempted to interview the following witnesses: Complainant, S1, S2, S3, the Lead Sales Store Checker (L1), a Sales Store Checker (CW1), two Store Associates (CW2, CW3), and a Former Store Associate (CW4).
The EEO Investigator was able to obtain declarations from Complainant, S3, L1, CW1, CW2, and CW4. Complainant's declaration was incomplete (she did not respond to questions about incidents 3 and 4) and unsigned. Emails reflect that, on two occasions, the EEO Investigator sent Complainant a draft declaration, asked her to complete the unanswered portions, and asked her to return a signed copy after completing it. According to the EEO Investigator, Complainant did not respond. The declarations of L1, CW1, and CW4 were completed but unsigned. Emails reflect that the EEO Investigator sent each of them a draft declaration and asked them to return a signed copy after reviewing it. The declarations of S3 and CW2 were completed and signed.
The EEO Investigator was unable to obtain declarations from S1, S2, or CW3. S1 and S2 had retired prior to the EEO Investigation and CW3 was on extended sick leave. The EEO Investigator stated the following: (a) the Agency provided contact information for S1, but S1 did not respond to her emails; (b) the Agency did not provide contact information for S2; and (c) Complainant and the Agency provided contact information for CW3, but she was unable to reach CW3.3
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In the final decision, the Agency concluded that Complainant did not prove that it subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the declarations in the record did not accurately reflect the testimony that she and other witnesses gave to the EEO Investigator. In addition, Complainant contends that the EEO Investigator interviewed CW2, who had nothing to do with her complaint. Moreover, Complainant contends that S1 directed other employees to watch her every move and report anything she said or did back to S1.
STANDARD OF REVIEW
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 EEO MD-110 (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").
ANALYSIS AND FINDINGS
Complainant's Dissatisfaction with the Processing of her EEO Complaint
A complainant must raise any dissatisfaction with the processing of her complaint before the AJ issues a decision on that complaint, the agency takes final action on the complaint, or either the AJ or the agency dismisses the complaint. Id. at 5-29. No concerns regarding improper processing raised after a decision will be accepted by the agency, the AJ, or the Office of Federal Operations. Id.
Upon review of the record, we find that Complainant did not timely raise her dissatisfaction with the processing of her EEO complaint. Specifically, there is no indication that Complainant raised her concerns regarding the witness declarations before the Agency issued its final decision on February 11, 2014. We note that Complainant had the opportunity to review her own declaration when the EEO Investigator emailed it to her with the request that she complete and sign it. We also note that Complainant had the opportunity to review all the witness declarations when the Agency provided her with a copy of the ROI after the conclusion of the investigation. Accordingly, we decline to address those concerns on appeal.
Disparate Treatment (Incident 2)
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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. Co. 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, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record, we find that Complainant did not establish that the Agency subjected her to disparate treatment on the bases of race, national origin, or color.
First, assuming arguendo that Complainant established a prima facie case on the alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for issuing her the memo on June 16. Specifically, S3 averred that the cashiers turned in their tills at the end of the shift to the tellers in the Cash Cage, who then counted the tills and compared the tills with the transactions to determine if the tills were over or short. In addition, S1 stated to the EEO Counselor that Complainant's cash till was found to be short by $106.50, that on those types of shortages the cashier did not receive the payment from the customer, and that Complainant's socialization with the customers negatively impacted her cash handling because it caused her to lose her concentration. Further, the record reflects that accompanying S1's June 16 memo were two documents, dated June 15, completed by a teller who identified the $106.50 shortage and a second teller who verified the $106.50 shortage.
Second, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race, national origin, or color discrimination. In her declaration, Complainant argued that S1 conspired with the tellers in the Cash Cage to steal money from the tills of non-Filipino employees and that S1 did not issue memos to Filipino employees who had shortages. The record, however, does not support Complainant's argument. Specifically, the record reflects that S1 issued memos to 10 employees about shortages and that two of those employees were Asian.4 In addition, the record reflects that S1 issued memos to eight other employees about overages and that seven of those employees were Asian. We note that variances, which included both shortages and overages, were part of a cashier's performance standard. Moreover, while CW1 and CW4 averred that S1 favored Filipino employees, L1 and CW2 averred that S1 treated everyone the same.
Hostile Work Environment Harassment (Incidents 1-4)
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002, at 6 (Mar. 8, 1994).
Upon review of the record, we find that Complainant did not establish a claim of harassment. Regarding incident 1, we find that, even if true, Complainant did not show that it was sufficiently severe or pervasive to create an abusive working environment. Complainant alleged that S2 made a comment to her in August 2011 about keeping a secret "like the Underground Railroad." According to Merriam-Webster's Dictionary, the Underground Railroad was "a system of cooperation among active antislavery people in the United States before 1863 by which fugitive slaves were secretly helped to reach the North and Canada."5 Examples of the types of single incidents that can create a hostile work environment based on race include: an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault), a favorable reference to the Ku Klux Klan, an unambiguous racial epithet such as the "N-word," and a racial comparison to an animal. EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, at 15-VII.A.2 (Apr. 19, 2006). An example of the type of single incident that, while racially offensive, does not create a hostile work environment based on race includes a supervisor's comment to an African-American librarian about not wanting to create a "ghetto corner" in the library devoted to books of interest particularly to African-Americans. See id. We find that S2's comment to Complainant about keeping a secret "like the Underground Railroad" is more similar to the latter than the former.
Regarding incident 2, we find, under the standards set forth in Harris, that Complainant's claim of hostile work environment involving S1 issuing her the memo must fail. See Harris Guidance. A finding of hostile work environment involving incident 2 is precluded by our determination that Complainant did not establish that S1's actions involving the memo were motivated by race, national origin, or color. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Regarding incidents 3 and 4, we find that Complainant did not show that S1's alleged actions were based on her race, national origin, or color. As we previously mentioned, the record contains conflicting testimony about whether S1 favored Filipino employees. Had Complainant requested a hearing before an AJ, she would have had the opportunity to cross-examine witnesses and the AJ could have made credibility determinations based on the witness testimony. See generally EEO MD-110, at Ch. 7. As Complainant did not request a hearing, we do not have the benefit of an AJ's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that S1's alleged actions were discriminatory.
CONCLUSION
Complainant did not timely raise her dissatisfaction with the processing of her EEO complaint. Complainant did not establish that the Agency subjected her to disparate treatment and hostile work environment on the bases of race, national or color. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that Complainant did not establish discrimination as alleged.
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 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
__7/27/16________________
Date
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 For purposes of clarity, we have rephrased and renumbered Complainant's allegations based on her pre-complaint intake form, the EEO Counselor's Report, her formal complaint, and her declaration.
3 Notwithstanding the above deficiencies, we find that the Agency developed an appropriate factual record that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. See Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), at 6-1 (Aug. 5, 2015).
4 The employee demographic information provided by the Agency included race, but not national origin.
5 Underground Railroad, Merriam-Webster's Dictionary, available at http://www.merriam-webster.com/dictionary/Underground%20Railroad.
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