[Redacted], Miguelina S., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Nov 2, 2022

Appeal No. 2021004295 (E.E.O.C. Nov. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Miguelina S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021004295 Agency No. DeCA-00150-2020 DECISION 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 July 7, 2021, 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. 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant Commissary Officer at the Agency’s Gunter Airforce Base in Montgomery, Alabama. On August 6, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and age (66) when: 1. Complainant believed that the Store Director provided negative references, which prevented Complainant from receiving serious consideration for promotions, with the most recent incident on or about May 18, 2020, for the Assistant Commissary 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. 2021004295 2 Officer position for the Yokusaku Japan Commissary, under job announcement number DECA-20-CCP-10599979-MP; 2. on April 19, 2020, the Store Director issued Complainant a Letter of Reprimand; 3. on June 24, 2020, Complainant received a Fully Successful rating for the appraisal period ending March 31, 2020; 4. on June 24, 2020, the Store Director refused to sign Complainant’s Weather and Safety Leave request for June 25, 2020; and 5. in excess of two years, from April 20, 2018, through June 25, 2020, Complainant was subjected to unfair scheduling, when compared to other managers (i.e., worked the closing shift for over two years). 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 EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. The instant appeal followed. Complainant requested, and was granted, an extension to file an appeal brief, but she did not submit any appeal brief. The Agency did not respond to Complainant’s appeal. ANALYSIS AND FINDINGS 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 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”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2021004295 3 She must generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has 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); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age, race, and sex, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. For claim 1, the Selecting Official stated that they interviewed Complainant for the vacancy at issue and she was ranked the second applicant. The Selecting Official explained that the selectee was chosen because he was the highest-scoring candidate and had a wealth of experience in the meat department. The Selecting Official averred that he received the Store Director’s reference noting that, “if given the opportunity, I would not have hired her,” but that it was not a factor in the decision because not everyone sees eye-to-eye or has the same management philosophy, and he assumed that was the case here. The Selecting Official added that, had the selectee declined the offer, he would have selected Complainant for the position. ROI at 705-7. Regarding claim 2, Complainant was issued the Letter of Reprimand for Failure to Follow Instructions and Conduct Unbecoming a Federal Supervisor. Specifically, Complainant refused to comply with the instruction to receive training on the Cash Office to temporarily assist with opening and closing. ROI at 399-400. The Store Director explained that, while Complainant claimed that there was a conflict of interest, during the pandemic, the Zone Manager made an exception to avoid the store closure due to staff shortage. Complainant still refused to comply and was issued the discipline. ROI at 674. The Zone Manager confirmed that he directed Complainant to assist with the cash cage and that management is authorized to work in the cash cage when directed. ROI at 694, 687. For claim 3, the Store Director stated that she gave Complainant a Fully Successful rating because she did her job, but she did not go above and beyond to merit an Outstanding rating. ROI at 678. Regarding claim 4, the Store Director averred that Complainant was upset with her performance rating and stated that she would go out on Weather and Safety Leave.2 The Store Director admitted that she initially denied the request because she thought that Complainant was upset and would change her mind after she had a chance to think things over, but when Complainant did not change her mind, the Store Director signed the leave request. ROI at 680-1. 2 The Agency allowed individuals who were at a higher risk for serious complications from Covid-19 to request Weather and Safety Leave. ROI at 202-4. 2021004295 4 Regarding claim 5, the Store Director responded that she granted Complainant’s request to change her work schedule in the past, but when employees complained that Complainant was just sitting in the office, the Store Director returned Complainant to the closing shift. ROI at 682. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Here, Complainant provided no arguments on appeal and only made bare assertions that management officials discriminated against her in her EEO affidavit. For example, Complainant alleged that the Store Director asked her to write up Black employees unnecessarily; “disliked [Complainant] for some reason”; and when Complainant dressed up, she felt that the Store Director was jealous of her. ROI at 660. Complainant provided no evidence to show that the proffered reasons were not worthy of belief. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, race, or sex. CONCLUSION 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 prove discrimination as alleged. 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). 2021004295 5 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). 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. 2021004295 6 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 2, 2022 Date