[Redacted], Danita P., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Dec 8, 2022

Appeal No. 2021004209 (E.E.O.C. Dec. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Danita P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency. Appeal No. 2021004209 Agency No. F21010 DECISION On July 20, 2021, 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 July 15, 2021, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. During the relevant time, Complainant worked as a Customer Experience Associate at the Agency’s Fort Belvoir Exchange in Fort Belvoir, Virginia. General Manager was Complainant’s fourth level supervisor. Report of Investigation (ROI) at 186. On December 11, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when, effective December 16, 2020, she was separated for cause. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). 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. 2021004209 2 When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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 (EEO MD-110), at Chap. 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”). Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts. The final decision also correctly identified the legal standard for Complainant to prove that he was subjected to disparate treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, they must first establish a prima facie case 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. 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. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency provided legitimate, nondiscriminatory reasons for their action. General Manager asserted that there were six instances in which Complainant made false allegations against Agency employees, which led to Complainant’s termination. Specifically, the Agency noted that: (1) Complainant said that people were trying to kill her by having the military police take her out to the woods and shoot her; (2) she alleged there was a prostitution ring at the Exchange; (3) she charged that employees were giving goods to the police; (4) Complainant accused a coworker of filing a false police report against Complainant; (5) Complainant contacted human resources and asserted that management was trying to kill her; and (6) Complainant told management she was barred from base, which General Manager later found to be inconsistent with information from military police. ROI at 188. General Manager removed Complainant based on her numerous false and salacious allegations regarding various individuals and groups in the Agency. 2021004209 3 We now turn to Complainant to provide evidence that the Agency’s actions were merely a pretext for unlawful discrimination. We find that she has failed to do so here. “[P]retext can be demonstrated by ‘showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’” Dalesandro v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (alterations in original) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). In this case, Complainant argued that her allegations made against the various individuals, as referenced in the Notice of Removal, were accurate. ROI at 165-68. Complainant claimed that General Manager always thought that she was lying. ROI at 165. Even if Complainant were accurate in her allegations, we find that she has presented no evidence that General Manager’s disbelief is related to a protected class. Ultimately, a Complainant must prove, by a preponderance of the evidence, that the Agency’s articulated reason for its action was not its true reason, but a sham or pretext for unlawful discrimination. Burdine, 450 U.S. at 253; see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Hicks, 509 U.S. at 511; McDonnell Douglas, 411 U.S. at 804. A complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry v. Dep’t of Hous. and Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). The record is devoid of such evidence in this case. Based on a thorough review of the record and the parties’ arguments on appeal, including those not specifically addressed herein, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2021004209 4 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. 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. 2021004209 5 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 8, 2022 Date