EEOC Appeal 2020000158

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lamar D.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 2020000158
Hearing No. 570-2018-00359X
Agency No. F17029
DECISION
Complainant filed an appeal from the February 1, 2019 decision of an EEOC Administrative Judge
(AJ), which became the Agency’s final decision, concerning an equal employment 	opportunity
(EEO) complaint. Complainant claimed 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. and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
On 	May 	24, 	2014, 	Complainant 	requested 	to 	be 	transferred 	from 	the 	Agency’s
Ansbach/Katterbach facility to the Wiesbaden Exchange, Army & Air Force Exchange Service
(AAFES) in Ramstein as a Senior Store Associate, subject to an intermittent employment period.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.
2 The record reflects that intermittent is a category of employment, just like regular part time and
regular full time.

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On April 24, 2017, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him on the bases of color (brown) and disability when:
1. 	effective June 26, 2014, he was separated from intermittent employment with the Army
& Air Force Exchange Service; and
2. 	in July 2014, Exchange management submitted a request to the Garrison at Wiesbaden
to consider banning Complainant from access to the military installation.
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ).3 The AJ assigned
to the case issued a Notice of Intent to Issue a Decision Without a Hearing on July 11, 2017.
Complainant responded to the Notice of Intent. 	On September 27, 2018, the AJ issued a decision
by summary judgment in favor of the Agency.4 The Agency did not issue a final order adopting
the AJ’s finding. As a result, the AJ’s decision became the Agency’s final decision.
The instant appeal followed. Complainant did not submit a brief on appeal.
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).
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.
3 The record reflects that during the investigation, Complainant did not submit an affidavit.
4 Complainant identified his disability as Post-Trauma Stress Disorder. For purposes of this
analysis, we assume, without so finding, that Complainant was a qualified individual with a
disability.

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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 the 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-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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, nondiscriminatory 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).
In finding no discrimination by summary judgment, the AJ found that the record developed during
the investigation established the following undisputed facts.
During the relevant period Complainant was employed as a Senior Store Associate at the Agency’s
Wiesbaden Exchange, AAFES in Ramstein, Germany. The Sales and Merchandise Manager was
Complainant’s third-level supervisor while the Retail Store Manager was his fourth-level
supervisor.
During his brief employment period, Complainant already had three different communication card
entries concerning issues with his customer service. Those issues included his use of vulgar and
threatening language.
The AJ noted that effective June 26, 2014, Complainant was separated during his probationary
period. 	Complainant’s separation was deemed “non-prejudicial” and Complainant could apply
for other jobs within the Exchange. Following his termination, Complainant sent several emails
that the General Manager believed them to be threatening. The General Manager requested that
Complainant be barred from access to the military installation. On May 8, 2017, Complainant’s
request to overturn the barring action imposed on him in July 2014, was denied.
The Retail Store manager (white), also Complainant’s fourth-level supervisor, explained that the
requirements of a Customer Service Associate “are very detailed, [and] require to be able to adjust
to several different in-house computer applications at a moment’s notice and most of all, courteous
and friendly behavior to customers at all times as well as co-workers.”

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She noted that three different Communication Cards entries by his former supervisor “clearly
indicated very early in [Complainant’s] tenure with us, that the Customer Service Section would
not be in his area of expertise.
The Human Resources Manager explained that on June 26, 2014, Complainant was placed on
notice that his services were no longer required and “he was separated from intermittent
employment under the provisions of Exchange Operating procedure 15-10 chapter 6 and
Separations from intermittent employment are issued under the authority of paragraph 5-6 of AR
215-8/AFI 34-211(I).” He noted that Complainant’s separation was non-prejudicial and he could
apply for other jobs within the Exchange.
The Military Police (white) explained, however, that on May 8, 2017, the Colonel signed a letter
upholding a barring action initially given to Complainant in July 2014. He stated that he reviewed
“the request of people that are requesting a bar removal, put a packet together for a legal review
and send it to the Garrison Commander (GC) [Colonel] for his approval or disapproval.” 	The
Military Police confirmed that the barring memorandum was upheld by the Colonel because
Complainant “has called cussing myself and other members of the Garrison Command Team,
sending harassing emails to me, accusing me of being a racist (I have never met him by the way),
telling people they are committing domestic terrorism because we are not letting him on post.”
Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did
not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed
to mask discrimination. Beyond his bare assertions, Complainant has simply provided no evidence
to support his claim that his treatment was the result of his color or disability.
Finally, 	we 	agree 	with 	the 	AJ’s 	determination 	that 	Complainant 	was 	not 	subjected 	to
discriminatory harassment. A case of discriminatory hostile work environment is precluded based
on our findings that Complainant failed to establish that any of the actions taken by the Agency
were motivated by his protected bases. 	See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).
CONCLUSION
Therefore, after a review of the record in its entirety, including consideration of all statements on
appeal, it is the decision of the Commission to AFFIRM the AJ’s decision which became the
Agency’s final decision.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). 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
September 14, 2020
Date