EEOC Appeal No. 0120132616
09-25-2015
Complainant v. Dep't of Def.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120132616
Agency No. DeCA-00212-2012
DECISION
Complainant filed an appeal from the Agency's June 5, 2013 final decision 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Store Checker at the Agency's Commissary at Peterson Air Force Base in Colorado.
On August 31, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race ("Filipino"), sex (female), and reprisal for prior protected EEO activity under Title VII. Specifically, Complainant alleged that, on July 15, 2012, she received an "Excellent" rating on her annual performance evaluation, and her coworkers (who were not Filipino and had no EEO activity) received an "Outstanding" annual rating.
The pertinent record shows the following information. Complainant is Asian of Filipino descent. She worked as a Sales Store Checker (Cashier), GS-2091-03. She reported to the Supervisory Store Associate, GS-1101-07. (Caucasian female, American, no prior EEO activity) ("S1"). S1 had been her supervisor since June 2011. Her second level supervisor was the Front End Manager (also referenced as Store Administrator) (Caucasian female, American, no prior EEO activity) ("S2"). Her third level supervisor was the Store Director (Caucasian male, American). Her supervisors were aware of her race and sex.
Before she received the rating at issue, Complainant had prior EEO activity. Complainant claimed that the head bagger had been harassing her [Complainant] at work and giving Complainant's son (who bagged groceries at the Commissary) a hard time. Complainant called the DECA Inspector General (IG) and told the IG that she did not feel safe at work anymore around the Head Bagger (race not specified, female). On July 7, 2011, Complainant reported the head bagger for converting government property. Two hours later, Complainant's son was fired as a bagger.
Complainant filed her first EEO complaint on November 7, 2011, regarding the termination of her son as a Commissary bagger on July 7, 2011. She alleged discrimination on the basis of her race, sex and reprisal. S2 and the Store Director were named in this complaint, which the Agency later dismissed for failure to state a claim. While S1 denied knowledge of this EEO activity, the record indicates otherwise.1 In addition, according to the Agency's final decision, S2 was aware of Complainant's EEO activity.
The record also shows that on June 29, 2012, Complainant sought EEO counseling on another claim of discriminatory harassment. It is not clear from the record whether or not S1 or S2 was aware of this counseling. Complainant never filed a formal complaint as she states she was told her claim was untimely raised.
On July 15, 2012, S1 issued Complainant a rating of "exceeded" for the period July 1, 2011 through June 30, 2012, in four of the five performance elements. However, for one critical element - "Safety, Security & Sanitation" - the supervisor rated Complainant as "met," which resulted in an overall performance rating of "Excellent," rather than "Outstanding."2 S2 also signed the evaluation as the reviewing official. Prior to this appraisal, Complainant had never received anything but an "exceeded" rating in this critical element.
In the evaluation's comment section to the critical element in question, S1 wrote: "[Complainant] complies with established safety and security policies. She maintains a clean and organized workstation. No infractions noted during this rating period."
S1 rated other employees, who were not Filipino and who had no prior EEO activity, with an "Outstanding" rating, giving those employees a rating of "exceeded" in all five elements, including the Safety, Security & Sanitation element. The text supporting the justification for the higher rating for the comparators was the essentially the same as the one issued to Complainant.
In explaining the difference in the ratings on the Safety, Security & Sanitation element provided to Complainant and the comparators, S1 said that Complainant did not go above and beyond the minimum requirement, but the others had. S1 conceded that she did not have any documentation to support her assessment. She also acknowledged that "there is not anything written that I know of" in terms of written guidance that indicates the differences between the performance ratings standards.
Complainant contended that, unlike herself, those receiving the higher rating had some infractions or "write-ups" that year. When asked during the investigation whether she had rated employees who had been written-up with infractions as "Outstanding," S1 responded that, "I have no idea." Complainant also alleged that she routinely volunteered for extra work relevant to this element, including cleaning the common areas.
Complainant met with management on July 27, 2012, and requested that her rating be adjusted. At that time, Complainant told them that she felt discriminated against because others who did not volunteer and who had write-ups [infractions] received an "Outstanding" rating. Complainant compared herself to two other sales store checkers who received "Outstanding" evaluations and who also worked for the same supervisor. Management refused to change the rating.3
At the conclusion of the investigation into her EEO complaint, 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that the complainant failed to establish a prima facie case of discrimination and failed to prove that the Agency acted on the basis of discriminatory animus.
Next, the Agency found that it articulated a legitimate reason: "[t]hat is, the complainant did not perform the safety, security, and sanitation function in a manner that exceeded the 'Met' level described in the standards." The Agency concedes that the "justification for the higher element ratings given to the employees to whom the complainant compares herself is essentially identical to that in the complainant's appraisal." The Agency reasoned "while the documentation on the rating forms should have been better, this deficiency does not prove a discriminatory motivation."
This appeal followed.
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. (November 9, 1999) (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").
We review this matter de novo and through the lens of the federal sector mandate of Title VII's Section 717. Title VII requires that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based . . . race [or] sex." 42 U.S.C. � 2000e-16(a). To prevail in a disparate treatment claim, Complainant must establish that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
We disagree with the Agency's conclusion that Complainant failed to establish a prima facie case of race discrimination and/or unlawful retaliation for prior EEO activity. With regard to race, the evidence shows that other employees, who were not of Filipino descent, received higher ratings than Complainant from the same supervisors for what appears, at least on the face of the appraisal forms, to be the same work performance. This is enough to raise an inference of discrimination. It does not appear, however, that Complainant has established a prima face case of sex discrimination as all her comparators were also female and she has presented no other evidence to suggest sex discrimination occurred.
With regard to Complainant's reprisal claim, the record is clear that Complainant filed a prior EEO complaint eight months before the rating at issue, which named S2, who signed the current rating as reviewing official, and the Store Director as responsible management officials. The Agency concedes in its final decision that S2 was aware of this prior complaint and the evidence supports a finding that S1 was also aware of it. In addition, the record indicates that Complainant sought EEO counseling to raise another harassment claim on June 29, 2012, two weeks before she received her rating. These facts are sufficient to raise an inference of retaliatory animus. See Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. The Supreme Court has described this burden as being met "if the [agency's] evidence raises a genuine issue of fact as to whether it discriminated against the [complainant]," and has noted that, "[t]o accomplish this, the [agency] must clearly set forth, through the introduction of admissible evidence, the reasons for the [complainant's] rejection." Id. at 255-56. Although the agency's burden of production is not onerous, it must nevertheless provide a specific , clear, and individualized explanation for the treatment accorded a complainant. See Complainant v. Department of Homeland Security (Federal Emergency Management Agency), EEOC Appeal No. 0120140085 (January 15, 2015) (finding that the agency failed to articulate a legitimate, nondiscriminatory reason for its action when the record provided no affidavit or explanation or evidence from any agency official articulating the specific reasons which the complainant could rebut).
The Agency found that it had articulated legitimate, nondiscriminatory reasons for its actions. The responsible management officials stated that Complainant failed to go beyond the minimum expectation when she failed to clean other areas.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
First, the Agency's own determinations regarding what is required to receive an "exceed" on the performance element in question undermines the Agency's stated perception that Complainant did not meet that standard. S1 used the same justification for granting the higher rating to the others as was offered to Complainant. By doing so, the Agency has acknowledged that Complainant met the standards that it required for recognition at the higher rating.
S1 stated that Complainant received the lower rating because she failed to clean other areas outside her own workstation. However, no evidence was proffered that the others rated higher did extra work or that doing the extra work was a prerequisite to being recognized through an "Outstanding" rating. It is undisputed that S1 used the same verbiage in support of those rated higher that she used to justify Complainant's rating. S1 acknowledged that management did not have any documentation to support its ratings. We also note that the supervisor did not tell Complainant of any issues during the mid-year review.
We find in this case that the record establishes that Complainant was accorded harsher treatment than non-Filipino employees and those with no prior EEO activity.
The record shows that the deciding official conceded that she had no supporting documentation and had no idea whether those who received an outstanding rating had any infractions. As Complainant noted, the existence of infractions should have precluded the comparison individuals from receiving an Outstanding rating. Moreover, Complainant averred that she did, in fact, clean the outside areas.
Further, the Agency did not provide any evidence that would show that the comparators performed at a higher standard or that Complainant failed to clean outside areas. On the contrary, the Agency's acknowledgements lend credence and evidentiary support to Complainant's claim of discrimination and reprisal.
Finally, we also find that there is some probative value to some other witness statements that lend credibility to Complainant's overall performance and the existence of a hostile work environment. ROI 272-280.
For these reasons, we find that Complainant has established, by a preponderance of the evidence that she was discriminated against because of her race (Filipino) and prior EEO activity.
CONCLUSION
Accordingly, we REVERSE the Agency's Decision and we REMAND the matter to the Agency for the remedial relief.
ORDER (D0610)
The Agency is ordered to take the following remedial action:
1. The Agency shall change the Complainant's rating of record from Excellent to Outstanding for the rating period - July 1, 2011 through June 30, 2012.
2. The Agency shall determine the appropriate amount of any monetary relief due Complainant, including any award money, with interest, comparable to that given to similarly situated employees who received an Outstanding rating during the same rating period.
3. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of any claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
4. The Agency is directed to conduct training for the S1 and S2 who were found to have violated Title VII. The Agency shall address these employees' responsibilities with respect to race discrimination and retaliation.
5. The Agency shall consider taking disciplinary action against S1 and S2. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
POSTING ORDER (G0914)
The Agency is ordered to post at its Peterson Air Force Base Commissary facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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, Director
Office of Federal Operations
September 25, 2015
__________________
Date
1 Complainant stated in her signed declaration that, "on September 7, 2011, [S1] called [Complainant] at home saying that [the named Head bagger] resigned, after [Complainant] called DECA IG and told them I did not feel safe at work anymore" and that the Head Bagger had "been harassing" Complainant. Report of Investigation, 257.
2 Complainant contends that awards at the Agency were determined by the overall performance rating received. According to Complainant the Store Director determined the awards.
3 During the processing of her EEO complaint on her rating, the Agency offered to settle by changing the rating. It is not clear from the record if Complainant was offered any other relief. Complainant elected to continue to pursue her EEO complaint.
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