Priscila F.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120171984 (E.E.O.C. Dec. 11, 2018)

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

Priscila F.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Appeal No. 0120171984

Hearing No. 550-2017-00070X

Agency No. DECA-00090-2016

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s
appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 16, 2017 final action
concerning an equal employment opportunity (EEO) complaint claiming 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

On July 29, 2014, Complainant was hired as a Sales Store Checker at the Agency’s Travis Air
Force Base Commissary in California, subject to a one-year probationary period.

On March 29, 2016, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), color (Black), and/or reprisal
for prior EEO activity when, on July 15, 2015, she was terminated from her position during her
probationary period.

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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After the investigation of the complaint, Complainant was provided with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant requested a hearing.

The Agency filed a motion for summary judgment with the AJ. On March 7, 2017, the AJ issued
a “Notice/Order: Intent to Consider Issuance of Decision Without a Hearing.” Therein, the AJ
outlined the evidence developed during the investigation relating to Complainant’s EEO
complaint. The AJ found that evidence was “comprehensive, complete, and impartial, and
constitutes an appropriate factual basis upon which to render a Decision herein without a hearing.”
The AJ stated, however, he was giving Complainant 15 calendar days to file a written response to
his Notice. The order further noted that if Complainant did not file a written response “producing
evidence of the existence of material facts in dispute, I will issue a decision on the merits granting
summary judgment to the agency or return the case to the agency for issuance of a Final Agency
decision pursuant to 29 CFR §§ 1614.107(a)(7), 109(b), 109(f), 109(g), and 110.”

Neither party filed a response.

On April 18, 2017, the AJ issued a document entitled “Order: Final Agency Decision.” In it, the
AJ remanded the formal complaint to the Agency for an issuance of a final decision “pursuant to
29 C.F.R. § 1614.110(b).”

On June 16, 2017, the Agency issued a final decision, interpreting the AJ’s order as a decision on
the merits by summary judgment. The Agency concluded, without analysis, that it was adopting
the AJ’s finding of no discrimination, and attached a copy of the AJ’s March 7, 2017 Notice/Order
to its decision.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing 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
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

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Here, the AJ’s April 18, 2017 order directed the Agency to issue a full decision on the merits
“pursuant to 29 C.F.R. § 1614.110(b).” However, we find that a fair reading of the AJ’s order, in
conjunction with EEOC’s regulations, indicates that he was actually issuing a decision by
summary judgment in favor of the Agency based on the undisputed evidence developed during the
investigation into the complaint. Therefore, the Agency correctly issued a decision pursuant to 29
C.F.R. § 1614.110(a), adopting the AJ’s implicit finding, by summary judgment, that
discrimination had not been established.

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, either before the AJ or on appeal. Even construing any inferences raised by the undisputed
facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor.

In his March 7, 2017 notice of intent to issue a decision without a hearing, the AJ determined that
the following facts were established by the investigation into the complaint:

The Supervisory Store Associate (“the supervisor”) (Filipino, Brown) stated that during the
relevant period she was Complainant’s immediate supervisor. The supervisor stated that she
decided to terminate Complainant during her probationary period “because she was not following
direct instructions from her Supervisors, continually leaving her post/register without proper
notification even after numerous verbal warnings, unauthorized shopping. All of these were
constant issues…additionally, she was also very disrespectful to Cash Control Personnel and had
been loud and rude in front of customers. These were all unacceptable behavior.”

The record contains a copy of Complainant’s termination letter dated July 15, 2015. Therein, the
supervisor placed Complainant on notice that she would be terminated during her probationary
period effective July 15, 2015. The supervisor determined that Complainant had “repeatedly failed
to follow instructions from her supervisor, to include but not limited to; leaving [her] register
unattended and/or refusing to serve customers, and making unauthorized purchases.”

Furthermore, the Assistant Supervisor (Caucasian, White), who acted in the supervisor’s absence,
stated that Complainant had been verbally counseled by him on several occasions about her
misconduct, but it continued nonetheless. The record contains a written record of these
counselings, including Complainant being observed on her cell phone while working, leaving work
before the official end of her shift, leaving her cash register unattended, and purchasing items for
her personal use. The record also contains several memos for the record from coworker witnesses
to these various events. A number of coworkers of various races testified during the investigation
to their observations of Complainant not following supervisory instructions, leaving her cash
register unattended, engaging in her own personal shopping when she should have been working,
and becoming confrontational when challenged on her conduct.

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Upon careful review of the evidence of record, as well as the parties’ arguments on appeal, we
conclude that the AJ correctly determined that the preponderance of the evidence did not establish
that Complainant was discriminated against as alleged.

Accordingly, we AFFIRM the Agency’s final decision adopting the AJ’s 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.
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).

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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

December 11, 2018
Date