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

Equal Employment Opportunity Commission

Apr 5, 2017

0120150805 (E.E.O.C. Apr. 5, 2017)

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

Liz M.,1
Complainant,

v.

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

Appeal No. 0120150805

Agency No. DeCA-00180-2013

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the December 9, 2014, final Agency decision (FAD) 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Part-Time Sales
Store Checker at the Agency’s Commissary in Fort Sill, Oklahoma. Complainant was
appointed to the position on October 7, 2012, subject to a one-year probationary period.
Complainant claims that while she worked there, her co-workers shut her out and were rude
and unprofessional to her. Complainant states that her second-level supervisor (S2) treated
Black employees more favorably than her. Complainant alleges that everyone was happy when
her first-level supervisor closed the store; however, when S2 closed the store, everyone was on
edge. In December 2012, Complainant was arrested for possession of marijuana and when she
returned to work, she claims that S2 had posted her “mug shot” on a bulletin board in the

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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break room. Complainant admits that she did not report her concerns about a hostile work
environment to anyone.

During her probationary period, Complainant accumulated 213 hours of sick leave through
February 2013. Complainant claims that she was out several days in October 2012 due to
being sick with the flu. In November 2012, Complainant asserts that she was out several days
due to nerve damage in her back. In December 2012, Complainant states that she missed work
after she was arrested on Christmas Eve for possession of marijuana. In February 2013,
Complainant claims she was involved in a car accident. Complainant alleges that following the
accident, she did not know her work status and did not report to work. On February 4, 2013,
Complainant emailed the Secretary stating that she had not been able to report to work and did
not have a phone. The Secretary informed Complainant that she should email her supervisors
directly. On February 9, 2013, Complainant’s mother emailed S2 to inform her that
Complainant had been cleared to return to work soon. S2 responded on February 12, 2013,
and told Complainant’s mother that she needed Complainant to call her. Complainant did not
respond to S2 until February 19, 2013. On February 14, 2013, S2 issued Complainant a
notice terminating her employment during the probationary period for her non-availability to
work.

On September 11, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(Caucasian) and color (White) when as evidenced by multiple incidents including, inter alia, in
February 2013, her supervisor continued to post her “mug shot” picture from the “Jailbirds”
publication and would not return her calls; no one from the supervisory chain would speak to
her; she was never advised about unsatisfactory performance and conduct; everyone was very
rude and unprofessional to her; and she was terminated from her position as a Sales Store
Checker during her probationary period effective February 15, 2013.

On September 20, 2013, the Agency dismissed the complaint for untimely EEO Counselor
contact. Complainant appealed and, in Complainant v. Dep’t of Def., EEOC Appeal No.
0120140134 (Feb. 11, 2014), the Commission reversed the dismissal and remanded the
complaint for further processing. At the conclusion of the investigation, the Agency provided
Complainant with a copy of the report of investigation (ROI) and notice of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
When Complainant did not respond within the timeframe provided in 29 C.F.R. § 1614.108(f),
the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to her termination, Complainant’s
second-level supervisor (S2) stated that Complainant was terminated based on her non-
availability to work. S2 cited several instances of Complainants failure to be regular in
attendance. S2 affirmed that during the first week of Complainant's employment, she had
babysitting issues and they accommodated her. Complainant then missed some work due to
several doctor’s appointments and sick absences. Further, Complainant did not report for all
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scheduled work shifts in January 2013, or for work in February 2013, and did not provide
doctor’s excuses for all her absences. S2 noted that management discussed Complainant’s
attendance issues with her in January 2013. Finally, Complainant was involved in a car
accident on February 1, 2013. S2 declared that Complainant emailed the secretary on
February 4, 2013, stating that she was in a car wreck and did not have a phone. On February
9, 2013, Complainant’s mother sent an email stating that Complainant was released to return to
work. S2 responded to the email on February 12, 2013, and told her that Complainant needed
to call her. Complainant did not respond until February 19, 2013, and her employment had
already been terminated.

The Agency concluded that Complainant failed to show that management’s reasons for
terminating her were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination as alleged.

With regard to her harassment claim, the Agency determined that the alleged incidents were
insufficiently severe or pervasive to establish a hostile work environment. Further, the Agency
found that there was no evidence that the alleged conduct was based on discriminatory animus.
S2 stated that a bagger brought in the mug shot of Complainant after her arrest for possession
of marijuana. S2 denied that she posted the mug shot and she had no knowledge of who posted
the picture. As a result, the Agency found that Complainant had not been subjected to a
hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant disagrees with management’s statements. Complainant disputes the
Agency’s claim that she was not regular in attendance or that she was counseled regarding her
attendance. Complainant challenges S2’s statement that she was unaware of her mug shot
being displayed in the break room. Complainant contends that she did not have any issues
until January 2013, when her mug shot was posted. Finally, Complainant argues that black
employees were treated more favorably than she was. Accordingly, Complainant requests that
the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
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450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, S2 issued Complainant the notice
terminating her employment during her probationary period due to Complainant’s failure to be
regular in attendance. ROI, at 114. From October 2012 through February 2013, Complainant
used 213 hours of sick leave. Id. at 21-22. S2 stated that Complainant missed work due to
various issues, but stopped reporting to work following a car accident in February 2013. Id. at
165-67. S2 noted that Complainant sent email messages to the Secretary, but did not contact
management following her car accident. Id. at 168. S2 affirmed that Complainant’s mother
contacted her on February 9, 2013, and she asked her mother to tell Complainant that she
needed to call. Id. Complainant did not respond until February 19, 2013, after her
employment had already been terminated. Id.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant’s protected classes were a factor in
any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real
reasons and that discriminatory animus was a factor in its actions. Complainant failed to carry
this burden. As a result, the Commission finds that Complainant has not established that she
was subjected to discrimination as alleged.

Hostile Work Environment

To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on
his statutorily protected classes; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
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conditions of [complainant's] employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

Again, the Commission notes it does not have the benefit of an Administrative Judge's
credibility determinations after a hearing; therefore, the Commission can only evaluate the
facts based on the weight of the evidence presented. Here, Complainant asserted that based on
her protected classes, she was subjected to a hostile work environment based on several
incidents where Agency officials and co-workers took actions that seemed adverse or disruptive
to her. The Commission concludes that the conduct alleged was insufficiently severe or
pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory animus
played a role in any of the Agency's actions. In particular, with respect to the mug shot
posting, S2 denied posting Complainant’s mug shot in the break room. ROI, at 110, 167.
Further, S2 stated that the only place she saw the photo was in a magazine brought in by a
bagger. Id. at 167. Complainant has presented no corroborating evidence to support her claim
that S2 posted the photo. The Store Director affirmed that he was not aware of the mug shot
or its posting. Id. at 129-30. While posting Complainant’s mug shot in the break room was
certainly inappropriate, there is no evidence that this conduct was based on discriminatory
animus. Further, Complainant presented no evidence in support of her claims that black
employees were treated more favorably or that her co-workers were rude and unprofessional to
her. As a result, the Commission finds that Complainant failed to show that she was subjected
to a discriminatory hostile work environment.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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).

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.

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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

April 5, 2017
Date