[Redacted], Maya F., 1 Complainant,v.Lloyd D. Austin, III, Secretary Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Mar 24, 2022

Appeal No. 2021005063 (E.E.O.C. Mar. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maya F.,1 Complainant, v. Lloyd D. Austin, III, Secretary Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021005063 Hearing No. 410-2021-00122X Agency No. DeCA-00218-2019 DECISION On September 16, 2021, 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 August 17, 2021 final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Produce Manager, GS-1144-07, at the Agency’s Kings Bay Navy Commissary at Kings Bay Base in Georgia. On October 21, 2019 (and later amended), Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of race (African-American), sex (female), color (Black), disability (Physical), and age (48) 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. 2021005063 2 1. Complainant was subjected to condescending, derogatory remarks and insults from the Assistant Commissary Officer (S1) both verbally and in writing impeding her ability to perform her job duties; 2. On July 10, 2019, Complainant received a Letter of Reprimand for Negligent Performance of Duty; 3. On September 11, 2019, Complainant was issued a Notice of Proposed Suspension; 4. On November 6, 2019, she was issued a seven-day suspension, effective December 8, 2019; and 5. In December 2019, she began to experience a change in the assignment of duties, was harassed, and issued a performance improvement plan by the Store Director (S2). 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 a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination as alleged. In the decision, the AJ found that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (1), Complainant failed to provide any evidence of condescending, derogatory remarks and insults from S1. The evidence of record demonstrated that S1’s emails were sent as directives and for informative purposes. In claim (2), Complainant received a Letter of Reprimand for Negligent Performance of Duty which was preceded with S1 notifying Complainant that her method of conducting the produce inventory was incorrect, and the produce department inventory was out of tolerance for multiple months. Complainant was also provided an action plan with initiatives on how to reinstate tolerance in the produce department as alleged in claim (5). Complainant acknowledged her method of conducting the produce monthly inventory was inconsistent with the method S1 and S2 wanted. The AJ noted that the record included multiple conversations with Complainant regarding her inventory being out of tolerance, multiple action plans issued to get Complainant’s department in tolerance, multiple Memoranda for Record detailing incidents where Complainant failed to follow her supervisor’s directives, as well as multiple email communications detailing incidents were Complainant was absent without leave or failed to follow leave procedures and insubordinate conduct. The performance issues remained unresolved and led to the issuance of a Seven-Day Suspension raised in claims (3) and (4). The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 2021005063 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant has failed to establish such a dispute. The record showed that the Agency articulated legitimate, non- discriminatory reasons for its actions as more fully discussed above. Agency management explained Complainant’s work deficiencies, including violating instructions related to inventory management for many months which caused her unit to be out of tolerance. Consequently, management took the actions that it deemed appropriate to try to correct her work performance, including issuing her work plans, reprimands, and, eventually, a suspension. Although Complainant disagreed with management’s perceptions, she did not offer evidence that the stated reasons were untrue. Moreover, Complainant did not provide sufficient evidence that the named management officials in this matter harbored discriminatory animus. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021005063 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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). 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, a 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). 2021005063 5 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 March 24, 2022 Date