Casie S.,1 Complainant,v.Christopher Miller, Acting Secretary, U.S. Department of Defense Defense Commissary Agency, Agency.

Equal Employment Opportunity Commission

Nov 16, 2020

2020000097 (E.E.O.C. Nov. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Casie S.,1 Complainant, v. Christopher Miller, Acting Secretary, U.S. Department of Defense Defense Commissary Agency, Agency. Appeal No. 2020000097 Hearing No. 410-2018-00070X Agency No. DECA-00061-2017 DECISION On August 8, 2019, 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 May 13, 2019, final order concerning her equal employment opportunity (EEO) complaint. She alleged 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 worked as a Sales Store Checker, GS-2091-03, at the Agency’s King’s Bay Commissary facility in King’s Bay, Georgia. On March 10, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected to a hostile work environment/harassment on the bases of race (African- American) and religion (Islam) when: 1. On November 21, 2016, during a pot luck, a bagger (Non-DeCA employee) gave Complainant a plate of potato salad that contained pork. The bagger also told 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. 2020000097 2 Complainant that she would like to travel to Germany, but was concerned about security and mentioned the Boston incident, which Complainant interpreted as implicating her as a terrorist. 2. On December 28, 2016, a Deli Worker (non-DeCA employee) asked Complainant about her previous place of employment and asked Complainant if she had previously worked as a cashier. The next day, the Deli Worker told Complainant that she should be working more. 3. On an unspecified date, household cleaners were purposely unscrewed by another bagger, causing a permanent stain in Complainant’s car. Complainant later amended her complaint to add another claim alleging unlawful retaliation for prior EEO activity when: 4. On January 28, 2017, the Human Resources Assistant informed Complainant that there was an issue with her I-9 Form (Employment Eligibility Verification), which was unusual, as Complainant never had issues submitting I-9 Forms previously. The pertinent record shows that Complainant is a Muslim woman. She identifies her race as Black. She engaged in prior EEO activity when she contacted the EEO Counselor on December 28, 2016, regarding the current complaint. Complainant was employed as Sales Store Checker (GS-2091-03) at the Agency’s King’s Bay Commissary. She reported to the Customer Service Supervisor. Her second line supervisor was the Store Administrator. The third line supervisor was the Store Director. The Commissary held a pot luck on November 21, 2016. The record also shows that a co-worker offered Complainant a plate of potato salad, after Complainant arrived late at a pot luck. The coworker did not know that the potato salad contained pork. The coworker averred that after she was warned not to give Complainant the potato salad because it had pork in it, she tried to get it back. Complainant stated that after she had taken a bite, she asked the coworker if there was meat in this. Complainant stated the coworker apologized, but smirked. Complainant stated that she believed the coworker offered her the potato salad to mock her religion. Complainant stated that right after she was given the potato salad, she was asked by another coworker about being a military spouse and the location of the bases she had been at. That same coworker told Complainant that she would like to travel outside of the United States, but she feared for her security. Another co-worker asked Complainant whether she previously worked as a cashier and told her she should be working more. Complainant alleged that a third co- worker unscrewed the tops of household cleaners, resulting in a stain in Complainant’s car. On January 28, 2017, a Human Resources Assistant contacted Complainant after the Human Resources Assistant received an error message while attempting to process Complainant’s I-9 form. She called Complainant to verify the information. 2020000097 3 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 an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision by summary judgment in favor of the Agency on April 25, 2019. The AJ reasoned there is no indication from the evidence that Complainant was subjected to an adverse action on the basis of any of her protected classes and there was no evidence that the Human Resources Assistant contacted Complainant as an act of reprisal. The AJ found that the undisputed record shows that the Human Resources Assistant contacted Complainant after the Human Resources Assistant received an error message while attempting to process Complainant’s I-9 form and called Complainant to verify information. The AJ determined that further development of the record was unlikely to lead to a finding of discrimination and the preponderant evidence failed to show that Complainant was subjected to discrimination and/or retaliation. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. On appeal, Complainant contends that her case “deserves a second look” because “tricking someone to eat pork when you know it is against their religion is a true act of discrimination and hate.” She asserts that after she reported the initial incident, there has been a horrible domino effect on her career. Complainant referenced subsequent alleged acts of discrimination at a different location that occurred after the completion of the investigation of the instant complaint. In response, the Agency first asks that the appeal be dismissed because Complainant’s attorney received the FAD on May 14, 2019, but Complainant’s appeal was untimely because it was filed on August 8, 2019, 87 days later. The Agency next asks that the grant of summary judgment be affirmed, because there were no genuine issues of material fact in dispute and Complainant was given the opportunity to engage in discovery and chose not to participate. 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 2020000097 4 determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment. To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race or religion, or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Will K. v. Dep’t of Veterans Affairs (Veterans Health Administration), EEOC Appeal 0120142904 (Oct. 18, 2016). Even assuming claims 1-3 occurred as Complainant stated, there is insufficient evidence to link the incidents to Complainant’s religion or race. As such, Complainant’s case of discriminatory harassment is precluded based on our finding that Complainant failed to establish that any of the actions taken were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). With regard to claim 4, it is also undisputed that the Human Resources official (RMO1) was not aware of Complainant’s prior EEO activity when she contacted Complainant to request additional information regarding her I-9 submission. As such, Complainant cannot establish that RMO1’s inquiry about her I-9 was motivated in any way by retaliatory animus. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the entry of summary judgment was appropriate. To the extent Complainant wishes to pursue additional claims relevant to incidents that occurred after the dates at issue in this complaint, she should contact the EEO office to raise those claims. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision that adopted the AJ’s decision by summary judgment in its favor. 2020000097 5 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). 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. 2020000097 6 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 November 16, 2020 Date