[Redacted], Anna H., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Sep 21, 2022

Appeal No. 2021000987 (E.E.O.C. Sep. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anna H.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021000987 Hearing No. 420-2017-00304X Agency No. DECA-00226-2016 DECISION Complainant filed a timely appeal pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 8, 2020 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. At the time of events giving rise to this complaint, Complainant worked as a Computer Assisted Ordering Clerk, GS-1104-04, at the Agency’s Redstone Arsenal Commissary in Huntsville, Alabama. On November 18, 2016 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Dark Brown), and in reprisal for prior protected EEO activity when: 1. On July 29, 2016, Complainant was presented with a “Fully Successful” performance evaluation; 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. 2021000987 2 2. On July 29, 2016, Complainant was advised that her work schedule was changed effective August 7, 2016, violating two-week notification; 3. Complainant’s leave requests were not processed in a timely manner, the most recent being August 3, 2016, which was denied by Complainant’s immediate supervisor at the time on August 24, 2016; 4. Complainant was tasked to perform higher-graded duties without pay or development to advance to a higher position; 5. On March 24, 2017, Complainant learned she was not selected for the Commissary Management Specialist (Intern) position announced under Vacancy Announcement No. DeCA-17-1857714; 6. On or about March 31, 2018, the Assistant Grocery Manager gave Complainant an “Excellent” performance appraisal instead of an “Outstanding” appraisal after being directed by his supervisor to remove the negative comment that had kept Complainant’s performance appraisal from being Outstanding instead of Excellent; and 7. On or about June 1, 2019, Complainant’s then-immediate supervisor, refused to give Complainant as large a bonus as coworkers after raising Complainant’s evaluation from Fully Successful to Outstanding.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment in favor of the Agency. In the decision, the AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its action. Regarding claim (1), Complainant’s rating was justified because there were numerous “not in stock” issues, because of overstocking of other inventory, and because of failure to do the maximums and the minimums on the sales floor. As to claim (2), the schedule was changed because the facility’s workload did not allow for a longer notification of change to the work schedule. Complainant worked the Sunday schedule first because she was more experienced. With respect to claim (3), the delay was a result of the person responsible for handling the requests being out on leave. As to claim (4), the duties Complainant performed were not higher-level but corresponded with the typical duties of her position. With regard to claim (5), Complainant was not recommended for the position because management believed that she did not work well with her coworkers and lacked motivation. 2 The complaint was amended at hearing to include claims 6 and 7. 2021000987 3 Complainant ranked in the bottom quarter of candidates (based on factors such as education, overall experience, breadth of experience, store director recommendations, communication skills, and performance rating) by the selection panel and scored too low to merit an interview. As to claims (6) and (7), the AJ accepted the Agency’s explanation that Agency management had concerns over Complainant’s performance, including written work performance counselings she had received in January and February 2018. For the appraisal year ending in 2019, the Store Director increased each employee’s performance award because he felt the amounts were too low. Thus, Complainant received a 2019 performance award equal in amount to one co-worker and more than another co-worker. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. 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 determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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 or retaliatory animus. Here, however, Complainant has 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. 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 preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021000987 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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, a 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. 2021000987 5 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 21, 2022 Date