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

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2021003541 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Josefina P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021003541 Agency No. DECA002302019 DECISION Complainant appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from an April 21, 2021 Final Agency Decision (“FAD”) concerning an 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., Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Store Worker, WG-04, at the Luke Air Force Base Commissary in Glendale, Arizona. On October 18, 2019, Complainant filed a Formal EEO Complaint alleging that she was subjected to discrimination, including a hostile work environment by the Agency on the bases of sex (female) and disability (physical and mental) when: a. On July 20, 2019, Assistant Manager ordered her into his office and repeatedly subjected her to yelling, derogatory comments, and offensive language using the “F” word several times causing her to be humiliated, and, 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. 2021003541 2 b. On July 20, 2019, Assistant Manager refused to allow her to leave his office threatening to “write her up” if she left the office. The evidence developed during the Agency’s investigation into the complaint showed that Complainant has chronic knee pain, which has gotten steadily worse over the past 6 years. In addition, around 2016, Complainant was formally diagnosed with chronic migraines and anxiety, which could be immobilizing. She can “work through” her migraines some days, but sometimes the symptoms, which include light and sound sensitivity, nausea, and vision impairments, are severe, and she needs to go home early. With respect to her knee, Complainant explains that she has good and bad days, and that “when it is swelling, it causes pain and slows me down.” Complainant’s supervisor (male, no disability) was the Assistant Grocery Department Manager, GS-7, (“Supervisor”). They previously met in 2016, when they were both cashiers in the Grocery Department. Complainant recounts that Supervisor regularly “bullied” her. One witness testified that Supervisor would get “annoyed” and “frustrated” because he believed Complainant exaggerated the pain she experienced from her knee issue in order to always get assigned to the least busy cash register. In or around 2017, Complainant transferred to a position in the warehouse, because, among other things, it allowed her to avoid Supervisor. In or around 2018, Supervisor was promoted, and Complainant became his subordinate. Complainant provided Supervisor with medical documents to support that she had migraines and a knee issue. She also disclosed that she took medication for anxiety and chronic migraines. Complainant recounts that Supervisor told her to “turn off” her migraines and “find a way to control them.” Complainant also states that in July 2018, she became aware that she has a congenital back impairment (fused disc L5 and L6). When she attempted to show Supervisor documentation, he allegedly responded, “I [won’t] look at that and I don’t care.” On July 20, 2019, Complainant recalls that Supervisor asked her what she was doing, but before she could respond, he yelled “in my office now!” Supervisor allegedly “got in her face” and yelled at her for, among other things, being “moody and insubordinate,” regularly ignoring his instructions, and, earlier that day, not working for 45 minutes (noting that he followed her). When Complainant attempted to speak, Supervisor allegedly stated “[F-word] shut up! This is bullshit! I am Assistant [F-word] Grocery Manager and you disrespect me…” Complainant states that she said she was leaving, and Supervisor responded “no you are not, I’ll write you up. You need to grow up and stop lying about me!” Complainant states that she started to cry, and Supervisor allegedly called her a child. He then dismissed her for the day, but, fearing she would be written up if she left Complainant spent the remainder of her shift in the bathroom. Complainant subsequently changed her schedule in order to avoid Supervisor. By Supervisor’s account, on July 20, 2019, Complainant gave him a “dirty look” when he asked her what she had going on. When he asked again, she became “loud and argumentative” and so he instructed her to come into his office to discuss the matter. Supervisor asserts that “[Complainant] seems to think she is being micromanaged ... She seems to think she can perform the tasks she wants when she wants. 2021003541 3 I explained to her I am the assistant Grocery Manager, and she needs to accept tasks I assign her and complete them without being argumentative or ignoring me...” He acknowledged that Complainant was “crying and upset” but denies telling her that she could not leave the office. He notes that he told her she could go home early after the meeting. In the EEO Counselor’s Report, Supervisor acknowledges that he “did not remember every word but he may have let the ‘F word’ slip once or twice.” The interaction did not impact Complainant’s annual evaluation or result in disciplinary action. Complainant asserts that the July 20, 2019 interaction was not an isolated incident, as she had been experiencing similar harassment since May 2018. According to Complainant, Supervisor’s demeanor and interactions with his male subordinates is “friendly” but he “talks down” do female subordinates and excessively monitors their work and break times. He has also insinuated that Complainant fakes her disabilities to get out of work. Complainant recalls that on an unspecified date, she informed the Store Manager, GS-11, (male, physical disability, vision and hearing impairment) who was her third level supervisor, and he “reacted with an over- reactive sigh.” In the record, Manager testified that he “had no idea” that Complainant had a medical condition. She also attempted to resolve Supervisor’s bullying conduct through the Union without success. However, other than the July 20, 2019 interaction, the only specific incident of harassment by Supervisor Complainant discusses in any detail occurred in 2018 when Supervisor refused to let her leave early when she had a migraine, stating that he did not believe her. On her way home after this stressful interaction and while experiencing migraine symptoms, Complainant drove off the road at a high speed and totaled her car. Afterward, Complainant required additional knee surgery. Complainant’s anxiety was also exacerbated, which triggered additional migraines. She developed PTSD from both the car crash and the intense anxiety she developed about working with Supervisor. At the conclusion of its investigation the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request either a FAD or a hearing before an EEOC Administrative Judge (“AJ”). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant did not establish discrimination as alleged. The instant appeal followed. 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, (“EEO MD-110”) 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 2021003541 4 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Harassment/Hostile Work Environment To prove her harassment claim, Complainant must establish that she 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 her sex and/or disabilities. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). Usually, unless the conduct is pervasive or severe, a single incident, or group of isolated incidents, will not be regarded as discriminatory harassment. Frye v. Dep't of Labor, EEOC Request No. 05950152 (Feb. 8, 1996); Backo v. United States Postal Serv., EEOC Request No. 05960227 (June 10, 1996). Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Here, Complainant provides two incidents of harassment within one year, accompanied by generalizations. According to Complainant, several witnesses were present in instances where Supervisor subjected her to harassment, but she does not identify them or specific examples. Based on all the circumstances, as provided in the record, Complainant has not established the requisite severity or pervasiveness for her claims to constitute harassment. Moreover, the record contains starkly conflicting testimony between Complainant and Supervisor, as well as multiple witnesses. Two coworkers, both Store Associates, GS-04, (both female, no disability) dispute Complainant’s characterization that Supervisor is a bully and treats men more favorably than women. These witnesses also adamantly testify that Complainant was faking her disabilities to get out of work. Another coworker, also a Store Associate, GS-04, (male, disability status not specified) confirms that Complainant “felt like she was being picked on [and] that she was being told that her medical condition was fake,” but does not claim knowledge of Supervisor’s alleged harassment specifically. The record also includes extensive testimony from a Store Worker, GS-04, (male, physical disability, permanent leg injury) who characterizes himself as a “mentor” to Complainant. Mentor asserts that he could tell that Complainant was not faking her disability and that Complainant’s sex and disability “definitely” motivated and/or contributed to Supervisor’s conduct toward Complainant. 2021003541 5 Mentor also states that once Supervisor had “an issue” with Complainant, other management officials began having an issue with Complainant as well. “It is almost as if they are all targeting her.” In particular, he observed that Complainant’s “medical conditions seem to always agitate management.” As Complainant did not request a hearing, we do not have the benefit of an AJ’s credibility determinations and oversight of further development of the record. Complainant bears the burden to prove her claims of harassment by a preponderance of the evidence. When the evidence supporting each side can be described as balanced at best, Complainant fails to meet that burden. See Brand v. Dep't Of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012), see, e.g. Granville W. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022003647 (Nov. 7, 2022) (Complainant requested a FAD, instead of a hearing, a decision cannot be made as to testimony is more credible). Having thoroughly reviewed the record and the Parties’ contentions on appeal, including those not specifically addressed herein, Complainant has not established discrimination as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision. 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 2021003541 6 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. 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. 2021003541 7 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 March 2, 2023 Date