EEOC Appeal 2020001347

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lloyd E.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 2020001347
Agency No. 19021
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 21, 2019, final
decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant was employed as a Supervisory Customer Experience
Associate at the Agency’s Wiesbaden Exchange in Wiesbaden, Germany. 	From June 2018
through August 24, 2018, Complainant was deployed to a courier position in Qatar at the Al
Udeid Air Base.
On February 4, 2019, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him and subjected his to harassment based on reprisal for prior protected
EEO activity 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.

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1. 	on or about June 5, 2018, Complainant’s general manager (“M1”) encouraged
him to pursue his interest for the Store Manager position at the AI Udeid Air Base
Exchange to stop him from participating in EEO cases, Office of Special
Investigations (“OSI”) investigation and Inspector General (“IG”) inquiry filed
against him;
2. 	on or about September 4, 2018, Complainant’s request to use his additional leave
until he was placed at Fort Bragg was denied;
3. 	effective November 7, 2018, Complainant was separated from his employment
with the Army and Air Force Exchange Service (“AAFES”) for Abandonment of
Job Position without appropriate notification; and
4. 	from July 1, 2018 to December 29, 2018, Senior Vice President (“SVP”), Europe
Region, did not secure Complainant a position at the Ft. Bragg Exchange (Eastern
Region).
After the investigation of the accepted claims, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative (AJ) or a final decision within thirty days of receipt of the correspondence.
Complainant requested a final decision.
On October 21, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.
The instant appeal followed.
On appeal, Complainant argues, in pertinent part, that the report of investigation was flawed.
Specifically, Complainant states that the investigator failed to properly investigate all of the
claims made in the formal complaint. 	Therefore, Complainant requests that the Commission
reverse the Agency’s final decision and remand the complaint to the Agency for further
investigation of the accepted claims.
2 Complainant testified that he participated as a witness in two on-going EEO complaints.
Complainant indicated that he made statements to the Inspector General on June 15, 2018 and he
was also a witness in an Office of Special Investigation in May, June, and July 2018.

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ANALYSIS AND FINDINGS
Preliminary Matter – Investigative Record
We address Complainant’s statement on appeal indicating that there were deficiencies in the
report of investigation (ROI). Our review of the record indicates that Complainant objected, on
March 13, 2019, April 4, 2019, and June 4, 2019 to the Agency’s Notices of Investigation of
Discrimination, dated March 8, 2019, March 28, 2019, and May 6, 2019, regarding the accepted
claims. 	The record reflects that after each objection, the Agency addressed Complainant’s
concerns and made the appropriate corrections, resulting in a final Notice of Investigation of
Discrimination dated June 5, 2019. However, there is no indication that Complainant submitted
a written statement specifying any deficiencies in the record after he received a copy of the ROI.
Moreover, our independent review of the record reveals an adequate investigation. Accordingly,
we deny Complainant’s request for remand for further investigation.
Merits of the Claims
Disparate Treatment
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, a 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. 	See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Our review of the record reflects that the Agency provided legitimate, non-discriminatory
reasons for its actions.

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Claim 1 – Application for Manager Position
Complainant asserts that M1 encouraged him to apply for the manager position because M1
knew that he wanted the position and because M1 did not want Complainant to make any
statements that would reflect badly on M1 during Complainant’s interview with the IG.
Complainant indicated that he submitted his request for the manager position on June 10, 2018,
the IG investigation was on June 15, 2018, and Complainant received his non-selection letter on
June 17, 2018. 	Because Complainant was not selected for this position, he explained that M1
informed him that he would be leaving AI Udeid.
M1 indicated that he was Complainant’s first level supervisor for the month of June 2018 while
Complainant was stationed in Qatar, and he was no longer Complainant’s supervisor when he
took a deployment to Afghanistan in July 2018. M1 explained that Complainant was upset that
he had been assigned to Qatar and not Afghanistan. 	A placement in Qatar would have allowed
Complainant to earn more money in danger pay as well as a ten-day paid R&R every three
months. 	However, M1 stated that he explained to Complainant that deployments are based on
operational 	needs. 	M1 	indicated 	that 	he 	recommended 	that 	Complainant 	apply 	for 	the
management position because it was M1’s job to support employees in their personal or
professional growth.
M1 also denied that the IG inspection had anything to do with Complainant or Complainant’s
activities. 	M1 asserted that the purpose of the investigation was to assess moral, command
relation, cash accountability, mandatory signage, customer basic needs, combatting trafficking in
persons compliance, and was not conducted as a result of any complaints. 	M1 further denied
having any knowledge of Complainant testifying as a witness in two other EEO complaints.
Claim 2 – Denied Leave Request
Complainant explained that after his deployment ended, he returned back to his assignment at the
Wiesbaden Exchange, but he requested and was approved for leave until September 17, 2018.
However, Complainant requested four weeks of additional leave to cover the time needed to
complete his transfer to Ft. Bragg, North Carolina. Complainant further indicated that he needed
to use to the leave while he waited for his transfer to complete to keep his health insurance, as his
wife was undergoing weekly chemotherapy treatments. 	However, Complainant indicated that
his first level supervisor (“S1”) informed him that his leave request was denied “because it was
not in the best interest for the exchange” and that he would be placed on leave without pay
(“LWOP”) until his transfer was completed.
Complainant’s third level supervisor (“S3”) explained that she had approved Complainants’ first
six weeks of leave but denied Complainant’s second leave request at issue because she needed
him in the facility for operational reasons. S3 clarified that she alone made the decision to deny
Complainant’s leave request. 	S3 indicated that she had not had a situation where an employee
requested leave until placement at another organization.

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In this case, S3 explained that she waited from September to the end of November 2018 for
Complainant’s transfer to be completed. 	S3 further explained that Complainant had indicated
that he did not want to return to the Wiesbaden Exchange, and the Agency had temporarily
promoted another employee to fill Complainant’s supervisory position. However, S3 explained
that because the employee was not performing at the level expected, the employee was returned
to his associate position and the Agency still needed to fill Complainant’s position. Finally, S3
denied being aware of Complainant’s prior EEO activity as a witness or Complainant’s
involvement with the IG and OSI investigations.
S1’s testimony corroborated S3’s assertion that Complainant was not allowed to use his leave in
the interim while he waited for completion of his transfer to Ft. Bragg. Specifically, a copy of a
September 12, 2018 email from S1 to Complainant states the following:
I discussed this with HR and they informed me that since you are in the transfer program
now, and you are not returning here, we cannot extend your leave. The temp position for
you will be ending shortly and the operational needs of the store we need to move
forward with hiring a new supervisor. I know that this is not what you wanted to hear. I
know a RPT position would allow you to keep your insurance. Have you talked with the
HR department at Bragg about a RPT position until a Full Time position becomes
available?
S1 also denied any knowledge of Complainant’s prior EEO activity. 	S1 acknowledged that
Complainant may have told him that he testified as a witness in another EEO complaint,
however, S1 indicated that he did not remember much of what Complainant said.
Claim 3 – Separation
Complainant acknowledged that his leave expired on September 22, 2018. However, he denied
that management had informed him that unless he returned to work by a certain date, he would
be 	separated 	from 	the 	Agency. 	Instead, 	Complainant 	explained 	that 	he 	believed 	that
management had all the necessary information regarding the completion of his transfer to Ft.
Bragg. 	Complainant also denied that he received the November 7, 2018 letter regarding his
termination. 	Complainant indicated that Human Resources (“HR”) submitted the letter to an
email address Complainant had used twelve years previously, when he first applied to the
Agency even though HR had used his Agency email and personal email during the time we was
waiting placement at Ft. Bragg. Consequently, Complainant explained that he learned about his
separation from the Agency toward the end of November 2018, when he attempted to log into his
work email and was denied access.
S3 stated that Complainant’s employment was terminated because he was unresponsive and
failed to respond to emails. S3 indicated that she and HR attempted to contact Complainant and
mailed the notice to Complainant’s mailing address on file, informing Complainant that he had
seven days to report back to work. 	However, S3 explained that the certified letter was refused
and returned to sender.

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Nevertheless, S3 stated that S1 had informed Complainant after his leave request was denied that
he could lose his job if he did not report back to the Wiesbaden Exchange.
S3 also disputed Complainant’s claim that he was on the official transfer list. 	S3 clarified that
there was no transfer list. 	Rather, employees must apply for positions at other Exchanges.
Although S3 acknowledged that there were open positions at the time, Complainant had not
applied for these positions and Complainant was also informed of the need to provide additional
information. 	S3 denied discussing her decision to terminate Complainant’s employment with
SVP management and she also denied that Complainant’s prior EEO activity played a factor in
her decision.
The record indicates that the HR submitted an October 29, 2018, email to Complainant’s yahoo
email address informing him that he needed to report to work by November 5, 2018, or his
employment would terminate. The email also acknowledges that Complainant was working with
Ft. Bragg to obtain employment. 	HR advised Complainant to “accept an offer for anything
vacant they have to offer in order for you to keep your employment with the Exchange if you do
not plan to return to your current duty station.”
A copy of the November 5, 2018 notice of separation indicates that Complainant’s employment
was terminated due to abandonment of his position. 	The notice specifically states that
Complainant had not reported to duty since September 22, 2018 and Complainant’s termination
was effective, November 7, 2018. 	The record further indicates that this letter was issued by
certified mail to Complainant’s address in Spring Lake, North Carolina.
Claim 4 – Position at Ft. Bragg
Complainant acknowledged that the SVP agreed to help him obtain a management position at Ft.
Bragg. 	Complainant, however, believed that the SVP could have done more to assist in the
effort to find him a supervisory or comparable position.
The SVP confirmed that Complainant sought his assistance on July 3, 2018, with finding a
position at the Ft. Bragg Exchange. 	The SVP indicated that he was aware that Complainant
wanted a manager position, given that Complainant had previously held this position before he
was downgraded to a supervisory position because of the Agency’s 2015 reduction in force.
However, the SVP also acknowledged that the management positions were not always available.
The SVP indicated that he emailed the Ft. Bragg general manager who indicated that there were
no supervisory positions available, but that Complainant could be placed in another position and
then apply for other positions laterally. 	The SVP acknowledged that he was not in charge of
placing employees into jobs, he was not obligated to help associates secure positions, and he
made no promises to secure Complainant a supervisory position. Rather, the SVP indicated that
he had good intentions and wanted to help Complainant because Complainant came from his
region.

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SVP denied that he was aware of Complainant’s prior EEO activity or participation in the IG and
OSI investigations.
The Ft. Bragg general manager corroborated SVP’s testimony, and he also testified that HR
offered Complainant positions, but Complainant did not accept them.
We conclude that neither during the investigation nor on appeal has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on Complainant’s reprisal for prior protected EEO
activity.
Harassment
To establish a claim of discriminatory environment harassment, Complainant must show that: (1)
he belongs to a statutorily protected class; (2) he 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 class; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).
To prove his harassment claim, Complainant must establish that he 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 his protected basis – in this case, his reprisal for prior protected EEO
activity. Only if Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself. 	Here, as discussed above, Complainant simply has
provided inadequate evidence to support his claim that his treatment was the result of his reprisal
for prior protected EEO activity. 	We conclude that a case of harassment is precluded based on
our finding 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
We 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 (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 17, 2020
Date