U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sol W.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 0720180018 Hearing No. 443-2016-00167X Agency No. DECA000372016 DECISION Concurrently with issuing its January 29, 2018 final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of 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 Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales Store Checker, GS-2091-03 at the Agency's Minot Air Force Base Commissary facility in Minot, North Dakota. On February 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on December 15, 2015, his employment was terminated, during his probationary period. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on November 28, 2017, and issued a decision on December 15, 2017. During the hearing, five witnesses appeared. Complainant appeared pro se. The Agency was represented by Agency Counsel. The evidence revealed Complainant began his employment with the Agency on May 17, 2015, as a Sales Store Checker. He was subject to a one-year probationary period. His first level supervisor was the Supervisory Store Associate (Caucasian). His second level supervisor was the Store Director (Caucasian). On December 3, 2015, Complainant was told he was $10 over in his till. His supervisor told him not to be concerned, and "it happens to everyone" and that all cashiers make common everyday mistakes such as overages. The Supervisor testified that she had no intention of terminating Complainant prior to the December 5, 2015 incident. On December 5, 2015, while serving as the Cashier, Complainant had a disagreement with a Bagger (Caucasian). Complainant had allowed a customer to take the cart out of the store and the Bagger strongly objected to his doing so. Complainant's actions were consistent with the Agency policy. One of the rules stated that the bagger was not to interfere with the cashier. This Bagger had engaged in controlling behavior with others and had past disagreements with customers. At the urging of another employee who witnessed the interaction on December 5, 2015, Complainant provided a written statement as to what happened. The Bagger with whom he had the altercation witnessed him write the statement, and after speaking with others who were present, the Bagger left the premises. The Bagger was a close friend of Store Director. On December 15, 2015, Complainant was terminated. The Store Director testified that Complainant was terminated for throwing groceries down the belt, and that, in throwing the groceries, he injured the bagger's hand. There was no evidence presented that Complainant injured the bagger's hand. During the hearing, the Agency representative said the Bagger refused to attend the hearing and never countered Complainant's credible testimony that he did not throw the items down the belt bruising her hand. The record before us shows that those terminated during their probationary period were predominantly African-American employees. In her testimony and in her ROI declaration, the Supervisor acknowledged that, in addition to Complainant, two other African Americans were terminated during their probationary period. The record also shows that a Native-American was also terminated during the probationary period. The record also showed that another Caucasian employee had an altercation with the Bagger and the Caucasian employee did not receive any disciplinary action. The AJ Decision The AJ found there was sufficient evidence in the record to establish an inference of discrimination. To buttress her decision, the AJ entered 22 findings of fact. Specifically, she noted that Complainant was terminated while a Caucasian employee, who had an altercation with the same Bagger, received no disciplinary action. Further, the AJ noted that the employees terminated during their probationary period were predominantly African American. The AJ also noted the statement of a co-worker who believed Complainant's termination was based on race, that African-American employees are treated less favorably, and the punishment were based on race. The AJ acknowledged that the Agency articulated legitimate nondiscriminatory reasons, if true, saying he was terminated for angrily throwing items on the belt, injuring the bagger's hand and unplugging a heater. However, the AJ found that the Agency's "reasons for terminating Complainant are not believable." The AJ stated that she found Complainant to be the more credible witness. She stated that his demeanor was forthright and honest and he answered the questions presented without exaggeration or overreaching. The AJ found that, contrary to the Agency's assertions, the record showed that Complainant was meeting the normal requirements of the position at the time of his termination and that the Supervisor credibly acknowledged that she had no intention of terminating him prior to the December 5, 2015 incident. The AJ stated that she did not credit the manager's testimony and disclaimer that the termination was not based on Complainant's race. Finally, the AJ acknowledged the Commission has long held that where a complainant is a probationary employee, he or she is subjection to retention at the discretion of the Agency so long as the decision is not based on a protected category. However, the AJ found that "in this case, the decision to terminate Complainant was based on his race." The Agency appealed and, on the same day, issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. Complainant also appealed the Agency's rejection of the entire AJ decision. CONTENTIONS ON APPEAL The Agency maintains that, while the facts found by the AJ show that it is unlikely that the injury to the Bagger's hand was caused by Complainant (and that this altercation prompted Complainant's termination), "these facts do not show by a preponderance of the evidence that Complainant's termination was related to his being Black. The Agency did not dispute the 22 findings of facts found by the AJ, just the AJ's conclusion of law and Order of relief. In addition, the Agency asserts that the Commission permits the termination of probationary employees at the discretion of the agency. The Agency conceded that the second-level supervisor treated the Caucasian Bagger more favorably than Complainant, but maintains the Agency asserts that this was because of friendship and not race. Complainant maintains that the Agency's Order refusing to adopt the AJ decision should be reversed and the AJ finding of discrimination and Order of Relief should be upheld. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the Agency's Order, the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant has proven the alleged Agency discrimination. First, the AJ's determination was supported by 22 findings of fact, which are not disputed. Second, the AJ based her determination on credibility findings. She stated that she found the testimony of Complainant to be more credible and she found the Agency's stated reasons to be unbelievable. We find that the decision on race discrimination was based on sufficient evidence as provided by Complainant and others who testified that he was discriminated against. Therefore, we find that the Agency failed to make all of its personnel actions free of race discrimination. Once discrimination has been established as here, Complainant is entitled to appropriate remedies and relief, as delineated in 29 C.F.R. § 1614.501 and Title VII. CONCLUSION Accordingly, we REVERSE the Agency's Final Order and find that Complainant was discriminated against based on his race when the Agency terminated him from his position as a Sales Store Checker, GS-2091-03 at the Minot Commissary. The Agency shall comply with the Order as set forth below. ORDER OF REMEDIES Once discrimination has been established, the Complainant is entitled to appropriate remedies and relief, as delineated in 29 C.F.R. § 1614.501 and Title VII. The Agency is ordered to take the following relief to the Complainant: A. Reinstatement The Agency is ordered to retroactively reinstate Complainant to the position of Store Check, GS-2091-03, at the Minot AFB Commissary, Minot AFB, North Dakota, or a substantially equivalent position. Expungement. The Agency shall expunge any adverse materials relating to the termination in accordance with 29 C.F.R. § 1614.501(c)(3) and (4), including all references to the incident on December 5, 2015. B. Back Pay Complainant should be awarded back pay pursuant to 29 C.F.R. § 1614.501(c), from the time he was terminated until the date of his reinstatement. The Agency shall determine the appropriate amount of back pay, interest and other benefits due Complainant pursuant to 29 C.F.R. § 1614.501. For purposes of clarity, we note the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due the Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision was issued. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." C. Training The Agency is directed to provide EEO training on race discrimination under Title VII for the involved managerial employees at the Minot AFB Commissary, Minot ADB, North Dakota. The training shall be mandatory and conducted by a qualified trainer familiar with EEO instruction. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Minot AFB Commissary, Minot AFB, North Dakota facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 tends 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 August 15, 2018 __________________ Date 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 0720180018 8 0720180018