[Redacted], Drew N., 1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Dec 29, 2020

Appeal No. 2020004004 (E.E.O.C. Dec. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Drew N.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2020004004 Agency No. DeCA-00029-2019 DECISION On June 30, 2020, 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 June 23, 2020, final decision 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. and 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 decision finding no discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a part time Store Worker WG-6914-04 at the Agency’s Naval Base Rota Commissary facility in Cadiz, Spain. The Assistant Grocery Manager (AGM) was his first-line supervisor and the Grocery Manager (GM) was his second-level supervisor. Upper management included the Store Director/Commissary Officer (SDCO or Store Director) who only interacted with lower-level employees like Complainant if there were issues and the SDCO’s first line supervisor, the Assistant Commissary Director/Store Administrator (Store Administrator), who had hired Complainant. In his affidavit, Complainant identified his management chain as the Responsible Management Officials. 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. 2020004004 2 On February 13, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (African- American), religion (Catholic), color (brown), age (45), and in reprisal for prior protected EEO activity and subjected him to harassment and disparate treatment when, on October 16, 2018, Complainant was forced to reduce his duty hours to 20 hours per week in order to get some weekends off. Complainant asserted that the Spanish national commissary workers never worked every weekend. Complainant asserted that his race, color, and national origin were factors in denying him weekends off because he was the only Black American Store Worker in the commissary and the only employee assigned to work every weekend exclusively. Other American employees worked in the Deli and had different responsibilities and schedules. Specifically, Complainant asserted that a White American part-time coworker who was under 40 (CW1) had weekends off when Complainant started to work. Complainant stated that CW1 even explained to him how to go about asking to receive the same but his advice did not produce the same results and Complainant did not receive the same training opportunities that CW1 received. Another coworker (CW2), who was Latino American, age unknown, initially was assigned to the produce department but when he became a Store Worker, he alternated weekends with Complainant. CW2 stated that he had been hired to work nights and weekends. CW2 said that he would work 25-35 hours per week and used to work every weekend until they started rotations. He said schedules are usually four hour shifts from 8 to 10. Complainant, however, worked 6 to 10. CW2 explained that typically an employee worked Monday and Tuesday and get a Saturday or Sunday off in rotation. He said his schedule is always in the evening and recalled that for the calendar month of October, he had one Saturday and one Sunday off. Lastly, Complainant observed that a Puerto Rican American worker who was over 30 (CW3) was a Deli worker who sometimes worked weekends. Complainant noted that even when he offered to reduce his hours in order to get some weekends off, he was scheduled for 20 hours and still had to work weekends for about two months because the commissary was short staffed. Complainant asserted that, in contrast, the Spanish national employees were permitted to rotate weekends. He asserted specifically that a part-time Spanish national employee who had a schedule closest to his was able to continue to work 30+ hours a week and still get some weekends off. He also claimed that the Spanish national employees were afforded the opportunity to work more hours than him, despite the fact that he had more seniority. CW-2 explained that if the Spanish employees get 40 hours a week, they get the weekend off. He stated that the Spanish nationals are under different work laws and are treated better. Complainant further averred that his race and color played a role in the scheduling decisions, even though the GM was Black, because the GM and the Defense Commissary Agency (DeCA) management harbored negative stereotypical beliefs that African Americans were “lazy, uneducated, and stupid.” He also alleged that the GM had the misconception that only one person of color can be successful at one time and that she did not treat part-time workers well. He said that the entire management of Rota Commissary treated non-American employees better than they treated him. 2020004004 3 In Complainant’s view, American employees were looked at unfavorably by Rota Commissary management because workers of Spanish origin are easily controlled and would work for free. He said that the GM, Store Director, and Store Administrator would often make unintelligent and unfounded remarks about the perceived work ethics of their employees, intimating this was the reason why more Americans were not hired at Rota Commissary. However, Complainant averred that, because Americans have a firmer understanding of their employment rights, they were considered undesirable and potential problems. He stated that management was aware of his race and national origin because it was on his paperwork when he applied for the job and they were aware of his color when he commenced work. Complainant said that his age (45) was a factor because he did not receive the training that CW1, who was under 30, received. He explained that he was unfairly excluded from the cardboard bailer training that was supposed to be a requirement of his job. Complainant asserted that this in-house training was denied to him because he was perceived to have "wasted" too much of his limited hours in the store with training and even basic training for the job was cut short, once management realized that he had a breadth of other experiences. He also asserted that younger employees got a chance for advancement that he did not. He alleged that his religion was a factor because he had asked for Easter off and he did not get it. He said the Spanish national workers had Easter off. He also said that his religious observance did not seem to sit well with any of the managers at Rota Commissary during his time there. Although management denied knowing Complainant’s religion, Complainant asserted that he had disclosed it on his transfer documents from the military. Complainant also alleged that he was a victim of harassment because the GM created a hostile work environment because she had certain stereotypes against Black Americans (despite being Black, herself) and went out of her way to say demeaning things to him. Complainant further noted that the GM never provided him with a nametag, which to him was an early indication that she didn't want him there, and she didn't provide him with the required training for his position. He observed that on his last day of work, she snatched his CAC card out of his hand and confiscated his work smock and boots. He also thinks she believed that he would eventually uncover other misdeeds in the Rota Commissary. He said that the GM made it so hostile that he did not have a choice, but to leave the job. Complainant asserted that no other employee was subjected to this type of behavior and that management did not stop the harassment because the Store Administrator was in a vulnerable position due to rumors of an affair with his subordinate; the SDCO was considered ineffective due to the increased rumors that he had a drinking problem and a Driving Under the Influence arrest, and the AGM allowed him to be harassed and enforced unfair rules because the situation at Rota Commissary was hopeless. CW-2 added that the part-timers are treated the worst and are disrespected and talked down to by the GM. Lastly, Complainant stated that he was subjected to reprisal because he had filed a whistleblower complaint alleging that the Spanish nationals were working for free in violation of the Anti- Deficiency Act. He explained that the Spanish national workers are covered by a Spanish- American agreement called SOFA. 2020004004 4 This agreement between Spain and the United States paid the Spanish nationals at a different rate and they did not get the same benefits. Complainant said that he does not know what the outcome of his whistleblower complaint was because Spanish employees continued to work for free on occasion, but he felt that he suffered retaliation because he was compared to these workers during his performance appraisals. Management denied that it engaged in discrimination, harassment or reprisal. They asserted that they were aware of Complainant’s race and color, and that some knew he was over 40. With respect to his national origin, most of the managers knew he was American but the GM said that she thought he was from the West Indies (St. Vincent) like her because of shared interest in Caribbean food. They all maintained, however, that they were not aware of Complainant’s religion or prior EEO activity. They claimed that neither Complainant’s protected traits nor alleged protected activity factored into their decisions regarding his work schedules. Specifically, the Store Administrator (SA), stated that Complainant was hired to work part-time (at least 20 hours) on nights and weekends. The SA noted that if there were additional funds, part- timers could work more than 20 hours on a limited basis but the schedule rotated among the staff based on the needs of the mission. Consequently, the record indicates that Complainant sometimes worked 30-35 hours per week. He added that even though he is not involved in employees’ schedules, he vaguely remembered an email in which Complainant asked for weekends off and expressed a willingness to return to his original contract term of 20 hours to get weekends off if necessary. He said he explained to Complainant that everyone worked weekends including himself and that the schedule for part-time workers rotated based on the need of the mission. He further noted that any work hours above a part-time employee's contract is voluntary, not guaranteed, and based on the needs of the mission. The Store Director maintained that he was not involved with Complainant’s scheduling or day to day activities, and did not harass him. With respect to Complainant, he observed that Complainant was hired based on merit to be a flexible part-time employee who would be granted 20 hours minimum. The Store Director said that Complainant was given extra hours when he requested them if possible. However, he recalled that Complainant asked to reduce his hours because he said that the more hours he worked, the more child services would garnish his pay due to back child support. The Store Director stated that his management team felt that Complainant kept waffling about when he could work, including weekends. The GM explained that Spanish laws only allowed American workers to make up 30 percent of the employment at the commissary and Spanish national employees make up 70 percent of the commissary employees. She said that full time store workers (who were of different races and national origins) worked Monday through Friday and had weekends off. Part-time workers were assigned the weekend. She explained that when the commissary had additional monies, extra hours were assigned to part-time employees based on seniority and that some have worked up to 39 hours. She said the AGM set the weekly schedules and that she only did the schedule when he was away. The AGM, however, said that on occasion the GM would modify the schedules he created especially if the commissary was short staffed and people were needed to work the weekend. 2020004004 5 Concerning Complainant, the GM said that Complainant had been working 30 hours per week and was scheduled according to how he could best support the operation. The GM recalled Complainant asking in writing for the weekend off to see his son on September 10, 2019; however, the schedule had been already made up to week of September 22, 2019. and the commissary was short-staffed. She said he then asked if he could get a weekend off in October when the new schedule started. The GM said she explained to him that she could not promise him anything because his schedule would be completed according to the needs of the Agency and as one of the last people hired, he had little seniority. She said Complainant said that if he could not get weekends then, he didn't want to work the additional hours and requested a reduction in his hours to 20 hours. The GM said she told him that she would inform the AGM of his request and that it would be reflected on the next schedule. However, she said even after reducing his hours, Complainant started calling in sick on the weekend days that he was scheduled to work. The GM said two months after Complainant had asked for reduced hours, he asked if he could work additional hours again. She said she denied his request because he had asked for reduced hours and because he had become unreliable and had different issues and reasons every other week as to why he could not make it to work. The GM also explained that when she granted Complainant’s request to reduce his hours, those forfeited hours were distributed among other employees who wanted them. Finally, the GM said that other part-time workers in addition to Complainant worked weekends. She noted that one PT store worker who was a 60 year old white, American male (CW-4) whose religion she did not know worked every Sunday. The other was CW-1, a white, American male (religion unknown) in his late 20s or early 30s who worked nearly every weekend before he returned to the United States to work at the Memphis Tennessee Commissary. The GM said she was not aware of Complainant’s religion, age, or prior EEO activity. Lastly, the GM denied harassing Complainant regarding his schedule because she said he asked for the reduction in hours and she merely granted his request. The AGM observed that, when he prepared the work schedules, part-time workers were rotated such that they had at least one weekend off a month. The schedule runs for two weeks. He added that Complainant was hired to work 20 hours part-time and weekends. However, after Complainant requested weekends off, he received either a Saturday or Sunday off every month. If the AGM could not accommodate Complainant’s need for weekends off, he said that Complainant used leave. The AGM also explained that when Complainant requested more hours, he denied this request because there were no more extra hours since they had hired more people. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2020004004 6 Specifically, the Agency found that for disparate treatment purposes, Complainant was a member of protected classes but that Complainant failed to demonstrate that he was treated differently than others outside of his protected classes. The Agency noted that the change in Complainant’s schedule, the reduction to 20 hours as stated in his complaint, was done at his request. Further, the Agency stated that even if Complainant could meet the prima facie requirements, management had articulated legitimate, nondiscriminatory reasons for the scheduling decisions, and Complainant failed to show how his protected attributes were motivating factors leading to the Agency’s decisions. With respect to Complainant’s religious discrimination claim, the Agency found that the evidence offered by Complainant did not clearly establish that he had a bona fide religious belief that conflicted with his employment, or that he had made a specific request for a religious accommodation. In its view, the evidence fell short of establishing a prima facie case of a denial of religious accommodation. Further, the Agency noted that Complainant’s time and attendance records showed that he did not work on April 1, 2018 (Easter Day). Concerning the harassment claim, the Agency concluded that there was no evidence of unwelcome verbal or physical conduct based on any of the protected classes. The Agency found that in addition to the absence of evidence of discriminatory intent, management’s scheduling decisions based on the Agency’s needs is considered ordinary workplace tribulations that fail to establish that Complainant was subjected to severe or pervasive conduct that altered the conditions of his employment. Lastly, the Agency noted that Complainant’s reprisal claim was based on “Whistleblower” activity. It noted that since the discrimination complaint process is not the appropriate venue for raising whistleblower claims, and the only EEO activity was the instant complaint, Complainant failed to establish a nexus between any EEO activity and the alleged adverse action of denying him weekends off or more work hours. The Agency also noted that even if Complainant had established a prima facie case, management had articulated legitimate, nondiscriminatory reasons for its actions, specifically Complainant’s request for a reduction in hours and the unavailability of additional hours. 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, at Chapter 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”). 2020004004 7 Even if Complainant established a prima facie case for all alleged bases, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination. The record established that Complainant was hired as a part-time employee to work weekends. Additionally, by Complainant’s own admission, the commissary was short-staffed and thus employees of different races, colors, national origins, and ages were often scheduled to work the weekends. Although Spanish national workers had weekends off, the record is clear that they operated under different laws and contractual terms than American workers such as Complainant and thus were not appropriate comparators. Moreover, other workers who were given weekends off either had more seniority than Complainant or served in different positions that had different needs. Next, we find that the record supports that the Agency granted Complainant’s request to have weekends off if it fit the Agency’s needs or permitted him to take leave if the schedule could not be changed. We also find that when the Agency denied Complainant’s request for weekends off, Complainant failed to refute management’s reasons for the denial or more importantly, to show that his protected traits motivated the decision. Complainant’s inability to demonstrate that management’s actions were triggered by his protected traits also undermines his harassment claim. Further, we concur with the Agency that these scheduling issues do not rise to the level of severity or pervasiveness necessary to support the harassment claim. We also find that to the extent that Complainant may be alleging he was denied a religious accommodation, that claim must fail because the record shows that Complainant was accommodated by being allowed to take leave on the day at issue. CONCLUSION We AFFIRM the Agency's finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2020004004 8 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020004004 9 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 29, 2020 Date