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

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2022002896 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Will K.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency. Appeal No. 2022002896 Hearing No. 450-2021-00390X Agency No. 21.017 DECISION On April 28, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 29, 2022 final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND On June 1, 2020, Complainant was hired as a probationary employee hired as Replenishment Allocation Specialist, Pay Band 04-01 at the Agency’s Headquarters in Dallas, Texas, subjected to one-year probationary period. On May 4, 2021, Complainant filed a formal complaint. Complainant claimed that the Agency discriminated against him based on his race (African American), sex (male), disability, and age (YOB: 1980) when:2 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. 2022002896 2 a. Complainant was discriminated against because of his age, disability, and race when effective March 25, 2021, he was separated during his Probationary Period from the Army & Air Force Exchange Service. b. Complainant was subjected to harassment because of his age, disability, and race when from October 2020 to March 2021, the Director of Replenishment, also Complainant’s third-level supervisor (S3), would emphasize that he was in probationary status and she could hire others to replace him. After an investigation, the Agency provided Complainant with a copy of the report of investigation, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for Decision Without a Hearing. Complainant responded to the Motion. The AJ issued a decision by summary judgment in favor of the Agency on March 23, 2022. The Agency thereafter issued a final order implementing the AJ’s decision.3 The instant appeal followed. ANALYSIS AND FINDINGS 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). 2 The record reflects that on September 3, 2020, Complainant was diagnosed with high blood pressure and anxiety. He stated that this has caused him to be nervous and it was challenging to do his job. According to Complainant, the Director, Planning, Allocation Replenishment, also his third-level supervisor (S3) was not aware of his medical condition. Moreover, Complainant stated that he did not need any accommodation to perform his job. 3 The record in this case does not contain a copy of the Agency’s final order. However, on appeal, the Agency acknowledges that it had issued a final order adopting the decision of the AJ, finding no discrimination. Given this explicit admission, despite the absence of a final order, we determine that there is sufficient documentation to proceed with a review of this appeal. 2022002896 3 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record o 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. Even construing any inferences raised by undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Based on the evidence developed during the investigation of the complaint, we concur with the AJ’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the separation action. The Inventory Management Specialist III Supervisor was Complainant’s first-level supervisor (S1) and the Director, Planning, Allocation Replenishment was Complainant’s third-level supervisor. The Vice President was Complainant’s fourth-level supervisor (S4). Regarding claim a, the Director, Planning, Allocation Replenishment (S3) (Caucasian, Hispanic, female, age, YOB: 1979) stated that on March 25, 2021, Complainant was separated during his Probationary Period from the Agency for Failure to Meet Expectations. The record contains an email dated October 27, 2020, detailing a conversation between S3 and Complainant regarding Complainant’s progression. 2022002896 4 This correspondence noted that Complainant generated a purchase order in error with the wrong quantity, resulting in an order for more than 17 million dollars. In her email, S3 placed Complainant on notice that he was in his first year of probationary period and if he is not able to display he could accurately complete job responsibilities without assistance, they would need to reassess his ability to continue in his position. Further, S3 explained that Planning Allocation Replenishment was hiring eight to ten new employees soon, and Complainant’s biweekly training would have to be discontinued. However, Complainant was nonetheless offered the opportunity to participate in the training with the new employees to assist him with his work performance. In a March 11, 2021 email from a Planning Allocation Replenishment Manager to S3 indicated that Complainant was still not demonstrating satisfactory performance. On March 12, 2021, the Inventory Management Specialist III Supervisor (Caucasian, female, YOB: 1984) was Complainant’s first-level supervisor (S1). She stated that Complainant was given more assistance and one-on-one training than anyone else she had seen in the office. S1 stated that she personally spent hours daily going over procedures and terminology and walking him through the process step by step. S1 noted that Complainant’s co-workers also assisted in training him and answering questions, as did the trainers for the department. However, Complainant was still struggling. After receiving a report from S1 relating to Complainant’s performance, S3 emailed Human Resources detailing that Complainant was not a good fit for the Replenishment Allocation Specialist position. On March 18, 2021, Complainant received a letter from S4, Subject: Separation during Probationary Period, dated March 16, 2021. The letter explained that Complainant would be separated from his position within seven days. On March 25, 2021, Complainant was separated during his probationary period. The Vice President, Planning Allocation and Replenishment (Caucasian, male, YOB: 1981), also Complainant’s fourth-level supervisor (S4) authorized the Separation/Termination of Complainant based on Complainant not meeting performance expectations and milestone targets relative to his peer group. Specifically, S4 stated that Complainant was unable to perform tasks required of associates after approximately nine months of training. As a result, Complainant failed to meet targeted learning/development milestones for associates with his time in position. Regarding claim b, Complainant alleged that S3 would emphasize that he was in probationary status and she could hire others to replace him. S3 denied describing “more able candidates” to take Complainant’s position. In sum, after careful consideration of Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s express determination that none of the actions identified by Complainant as harassment. 2022002896 5 Moreover, as detailed above, Complainant’s job separation was not motivated by discriminatory animus. Beyond his bare assertions, Complainant has simply provided no evidence that his race, sex, disability or age played any role whatsoever in these matters. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment 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. 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). 2022002896 6 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. 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 27, 2022 Date