Jean F.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

0120181378 (E.E.O.C. Sep. 4, 2019)

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

Jean F.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Appeal No. 0120181378

Agency No. DECA000492017

DECISION

On March 9, 2018, 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
February 9, 2018 final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of. Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 a Store Worker, WG-
6914-04, at the Agency’s Robinson Barracks Commissary in Stuttgart, Germany. Complainant
alleged that the Store Director (S1) subjected him to harassment based on numerous incidents that
occurred beginning in November 2016. For example, Complainant claimed that S1 subjected him
to unreasonable scrutiny by questioning his work on November 3, 2016. Further, Complainant
claimed that S1 questioned him about his return from lunch on November 6, 2016, which made
him feel watched. On November 21, 2016, Complainant stated that S1 stared at him while he was
in his car during his 15-minute break. Complainant alleged that S1 followed him into the bathroom
later that same day. Complainant asserted that S1 did not scrutinize other employees in the same
manner.

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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Additionally, Complainant claimed that, on November 6, 2016, someone threw away a cartoon of
eggs that he had purchased. Complainant stated that although he could not prove it, he believed
that S1 was responsible. Complainant stated that he was unsure if S1 had thrown away other
employees’ food, but he believed S1 threw his food out as a form of intimidation and harassment.
Complainant further alleged that on November 15, 2016, S1 yelled “I’m not staring at you and I
don’t give a shit about you. Now get out of my office. Get out!” Complainant further claimed that
on December 6, 2016, S1 “shoulder bumped” him when they passed in the hallway. Complainant
stated that he asked S1 if there was a problem and S1 gave him an angry look without saying
anything.

On February 2, 2017, S1 issued Complainant his mid-year performance review. Complainant
claimed that normally the Grocery Manager would present him with this mid-year performance
review. Further, Complainant claimed that the mid-year review was negative and did not contain
any feedback from the Grocery Manager, so Complainant refused to sign it. Complainant claimed
that S1 stated in the review that Complainant was slow in performing his work, had a bad attitude,
and did not get along with customers. Complainant contended that he deserved a better mid-year
review because he did what he was supposed to do, took initiative, set up displays, and made good
comments and suggestions. Complainant claimed that he never received a copy of the review.

On January 19, 2017 (and amended on March 17, 2017), Complainant filed an EEO complaint
alleging that the Agency discriminated against him and subjected him to a hostile work
environment in reprisal for prior protected EEO activity when:

1. On February 2, 2017, the Store Director (S1), who was not his first-level supervisor,
presented Complainant with a negative mid-year performance review;

2. On December 6, 2016, S1 intentionally bumped into Complainant;

3. On November 15, 2016, S1 asked Complainant to report to his office and stated
"I'm not staring at you, and I don't give a shit about you. Now get out of my office.
Get out!";

4. On November 6, 2016, S1 threw away Complainant's carton of eggs, without
throwing away items which belonged to other employees;

5. On November 3, 6, and 21, 2016, S1 subjected Complainant to unreasonable
scrutiny which included Complainant's work assignments, and time taken for
breaks, lunch, and visits to the restroom; and

6. On March 14, 2017, S1 monitored Complainant in the men's restroom.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an 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 decision concluded
that Complainant failed to prove that the Agency subjected him to reprisal as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the record shows that he was subjected to a pattern of
retaliatory harassment by S1. Accordingly, Complainant requests that the Commission reverse the
final decision.

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. (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”).

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, Complainant must establish that he 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 his prior protected EEO activity. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

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As Complainant chose not to request a hearing, the Commission does not have the benefit of an
Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can
only evaluate the facts based on the weight of the evidence presented. The Commission finds that,
based on the totality of the circumstances, Complainant has not demonstrated that the alleged
incidents were sufficiently severe or pervasive to establish a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a
hostile work environment, the Commission finds that Complainant failed to show that the
Agency’s actions were based on retaliatory animus. The record reflects that the alleged incidents
were more likely the result of personality conflicts and general workplace disputes and tribulations
as discussed below.

Claim 1 (Negative Mid-Year Performance Review)

S1 stated that he issued Complainant’s mid-year performance review because he became
Complainant’s rating official after the Store Manager departed the Agency around November
2016. S1 affirmed that he gave Complainant a copy and they read it together. S1 confirmed that
he did not believe that the review was negative; rather, one of the key things he focused on was
Agency corporate values. One of the corporate values was civility in the workplace and he
communicated Complainant’s need to act with more civility. S1 stressed that Complainant
consistently displayed an uncivil attitude toward his supervisors. S1 noted that Complainant got
along with external customers and co-workers; therefore, he addressed the behavior that he
observed. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant
has not shown it to be a pretext designed to conceal discriminatory animus.

Claims 2, 3, 5, and 6 (Excessive Scrutiny and Incidents with S1)

Claims 2, 3, 5, and 6 are all based on alleged conduct directed against Complainant by S1. (Claim
2: intentionally “bumped” by S1; Claim 3: spoken to rudely S1; Claim 5: subjected to excessive
scrutiny by S1; Claim 6: monitored in men’s room by S1). With respect to each claim, the only
supporting evidence is Complainant’s uncorroborated testimony. In each case, S1 denied the
improper conduct of which he is accused. We conclude that Complainant has failed to prove by a
preponderance of evidence that the allegedly retaliatory conduct occurred.

Claim 4 (Carton of Eggs Thrown Away)

S1 explained that the carton of eggs in question was removed from a refrigerator used by
employees to store personal food items because the carton did not display a required sticker
showing that the item (which was available for purchase in the commissary) had been paid for by
the employee. This is a legitimate, nondiscriminatory reason for the Agency’s action.
Complainant has not shown it to be a pretext designed to conceal discriminatory animus.

The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so
objectively offensive as to alter the conditions of the victim’s employment.”
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Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The Commission concludes
that Complainant has not shown that he was subjected to a retaliatory hostile work environment.
Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the
Commission finds that, as discussed above, Complainant has not proffered any evidence from
which a reasonable fact finder could conclude that the Agency's explanation for its actions was
pretext for reprisal. As a result, the Commission finds that Complainant has not established that he
was subjected to reprisal or a hostile work environment as alleged.

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.

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.
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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.
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