Cristen T.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019000767 (E.E.O.C. Sep. 4, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Cristen T.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 2019000767

Hearing No. 450-2016-00360X

Agency No. 16.011

DECISION

On November 14, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 25, 2018 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Logistics Manager at the Agency’s Waco
Distribution Center in Waco, Texas.

On November 24, 2015, Complainant filed the instant formal complaint. Complainant claimed
that the Agency discriminated against her on the bases of race (African-American), color
(Black), sex (female) age (over 40), and in reprisal for prior EEO activity when:

a. her managers made comments to her that insulted the way she dressed and her hair;

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.
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b. effective August 1, 2015, the Distribution Center Manager and her third level
supervisor denied her an assignment to temporarily replace her supervisor while he
was on a temporary duty deployment assignment; and

c. effective September 1, 2015, the Distribution Center Manager and her third level
supervisor terminated her employment for alleged conduct violations.

After an investigation of the claims, the Agency provided Complainant with a copy of the
investigative file, and Complainant requested a hearing before an EEOC Administrative Judge
(AJ). The AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a
Hearing on August 7, 2018. Both Complainant and the Agency responded to the Notice of
Intent. On August 28, 2018, the AJ issued a decision by summary judgment in favor of the
Agency.

In finding no discrimination by summary judgment, the AJ found that the record developed
during the investigation established the following undisputed facts:

Regarding claim a, Complainant asserted that the Regional Logistics Manager (Asian/Caucasian
female, born 1968) and the Distribution Center Manager (white male, born 1960) made
comments to her that insulted the way she dressed and her hair. Specifically, she said the
Regional Logistics Manager asked her what she was wearing. Complainant did not provide any
specifics about hair comments. Complainant did state that the Distribution Center Manager said
he did not “like big hair.” Both managers denied making comments to anyone about the way
Complainant dressed and her hair. The AJ noted that none of the witnesses corroborated
Complainant’s assertions that her managers made harassing comments about Complainant’s hair
and the way she dressed.

Regarding claim b, Complainant alleged that effective August 1, 2015, the Distribution Center
Manager denied her an assignment to temporarily replace her supervisor while he was on a
temporary duty deployment assignment.

The Distribution Center Manager explained that the temporary promotion was not subject to a
competitive process, and he did not seek applicants. The Distribution Center Manager stated that
he decided to temporarily promote a named female employee (“Employee 1”) (African
American, female, born 1973) into Complainant’s supervisor’s position when he was deployed
to Afghanistan in August 2015. He said he selected Employee 1 for the temporary promotion
because she had “strong operational work experience. She had worked as a foreman in Shipping
earlier in her career. In addition, [Employee 1] had a competency rating on her 2014 annual PER
of a ‘4’ (a ‘5’ is the highest rating) demonstrating she possessed sound managerial skills.” He
also felt that Employee 1 had the potential and disposition to handle the additional new job
duties.

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Furthermore, the Manager stated that during the relevant period Complainant had “a competency
rating on her 2014 PER of a ‘2.’ [Complainant’s] competency rating was the lowest competency
rating in 2014 of any of the Pay Band 4 managers who worked at the Waco Distribution Center.
This demonstrated to me that [Complainant] was not ready to assume additional job
responsibilities.”

Regarding claim c, Complainant asserted that effective September 1, 2015, the Distribution
Center Manager terminated her employment for alleged conduct violations.

The AJ noted that the record reflects that Complainant resigned from her position in lieu of being
removed effective September 1, 2015. because she failed to disclose details regarding an
incident of workplace violence.

The record contains a copy of the August 27, 2015 Advance Notice of Separation for Cause by
the Distribution Center Manager placing Complainant on notice that she was being separated
from Agency employment for misconduct. Specifically, the Notice stated that Complainant was
aware n August 6, 2015, that coworker had threated to kill her and a foreman. However,
Complainant did not report the incident to management until August 20, 2015, a full 14 days
after the incident occurred. The Notice stated that during the August 20 discussion, “after you
[Complainant] were questioned regarding the events that took place on 6 August 2015 that you
admitted to intentionally lying and not disclosing details regarding the incident of workplace
violence committed [b]y [the coworker]. You shared that you knew [the coworker’s] job would
be in jeopardy if you reported what was actually said and that is why you knowingly
misrepresented the facts regarding this incident.”

The Distribution Center Manager determined that Complainant was intentionally dishonest and
disregarded the Agency’s Workplace Violence policies and procedures and that her dishonesty
“not only demonstrated unethical behavior as a supervisor, but it also exposed the Exchange to
liability and the Waco Distribution Center associates to a potentially dangerous workplace
environment.”

Based on this evidence, the AJ concluded no discrimination was established. The Agency issued
its final order, adopting the AJ’s decision.

The instant appeal followed. Complainant did not submit a brief on appeal.

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).
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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).

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 to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions.

Furthermore, we find that Complainant did not prove, by a preponderance of the evidence, that
these proffered reasons were a pretext designed to mask discrimination or unlawful retaliation.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing,
finding no discrimination.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 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 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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.

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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

September 4, 2019
Date