Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 22, 2015

01-2012-3533-0500 (E.E.O.C. Jul. 22, 2015)

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

,
Complainant,

v.

Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120123533

Hearing No. 410-2012-00016X

Agency No. 9R1M10157

DECISION
Complainant filed an appeal from the Agency’s August 24, 2012 Final Order concerning his
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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
Final Order, finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Painter
Supervisor1

at the Agency’s Robins Air Force Base facility in Warner Robins, Georgia. On
August 18, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of national origin (Hispanic) and age (62) when he was subjected to
harassment that included the following incidents:
a. On April 8, 2010, Complainant received a Notice of Proposed Suspension from
duty without pay for one day on a charge of failure to fulfill supervisor
responsibilities.

b. On May 5, 2010, S1 changed Complainant’s duty hours from 6:00am - 2:00 pm
to 6:00 am to 2:45 pm.

1 Complainant refers to his position also as Unit Chief, Production.
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c. On May 10, 2010, Complainant received a Notice of Decision to Reprimand in
lieu of receiving the one day suspension.

d. On May 21, 2010, S1 gave Complainant new duties and responsibilities that do
not line up with Complainant’s core document.

e. On May 25, 2010, Complainant received his 2009-2010 Civilian Rating of
Record with a composite score of 76. Complainant’s appraisal dropped from an
81 to a 76, which he feels does not reflect his performance during this rating
period and he did not receive any Quarterly Evaluations.

f. On June 3, 2010, E1 (secretary and time and attendance clerk) told Complainant
that S1 told her not to give Complainant any overtime unless it comes from S1.

g. From September 2009 to May 21, 2010, Complainant acted as the Deputy Chief
without being given any pay or experience for performing those duties.

h. S1 constantly criticizes and downgrades Complainant in front of his peers.

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 requested a hearing and the
AJ held a hearing on April 17, 2012, and issued a decision on August 8, 2012.

In his Decision, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons
for its actions. The AJ found that Complainant did not present any evidence that his national
origin or age motivated the reprimand that Complainant received (reduced from a one-day
suspension). The AJ found that Complainant was held accountable for the condition of
personnel files, also known as 971 files, and that Complainant’s position as a supervisor made
him an appropriate person to take responsibility for the files. The AJ also found that
Complainant did not present evidence of discrimination regarding the faulty cleaning of a
building, for which Complainant was also held responsible. The AJ found nothing unusual
about Complainant receiving a reprimand when an area for which Complainant was assigned to
oversee the cleaning was found not clean enough for Complainant’s second level supervisor,
S2. The AJ found the evidence indicated that debris remained on the floor after some debris-
covered equipment was moved, thus requiring that the floor be cleaned again.

The AJ also found that Complainant’s supervisors rated Complainant lower in 2010, because of
the reprimand he received rather than the outstanding rating Complainant enjoyed the previous
year.

With respect to Complainant’s duties, the AJ found that when Complainant attributed some of
his performance disputes with S1 to being responsible for too much, S1 provided Complainant
with a memorandum of duties that removed some production duties from Complainant’s
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responsibility. The AJ found that Complainant did not show that he had been performing the
full range of duties of the Deputy Production Chief. The AJ concluded that all of the duties to
which Complainant had been assigned were consistent with his position description including
those Complainant received in the memorandum from S1 outlining his duties without
production responsibilities.

Regarding overtime, the AJ considered the evidence that S1 and S2 were pressuring
Complainant to perform better and that the Agency was placing overtime restrictions on
everyone. The AJ found this explained only part of the reason that Complainant’s overtime
hours were decreased during the identified time. The AJ found that Complainant’s duty hours
were changed to be the same as those of S1 and S2 and that by changing Complainant’s duty
hours to end at 2:45 pm rather than at 2:00, Complainant was no longer receiving regular
overtime at the end of his shift when Complainant’s hours would overlap to accommodate
communication with the next shift. Additionally, Complainant was no longer attending
production meetings in the hour before the beginning of his shift, which further decreased his
overtime each pay period. The AJ found that Complainant’s timekeeper was informed to deny
Complainant overtime unless S1 authorized it.

The AJ considered that the operation to which Complainant was assigned had experienced a
change of management in December 2009, and that S2, Complainant’s second level manager
who arrived at that time, was in the position for 18 months before S2 was transferred. The AJ
found no dispute that the operation was not running as hoped. The AJ found that more likely
than not, Complainant experienced a difference of opinion with S1 and S2 regarding day to day
operations for which Complainant was held accountable.

The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

On appeal, Complainant states, as he did at the hearing of his complaint before the AJ, that
prior to the arrival of S2, Complainant earned approximately $30,000 a year in overtime
compensation. In 2010, Complainant’s income dropped by roughly that amount when
Complainant was denied overtime. Upon the departure of S2, Complainant’s overtime
opportunities and his outstanding performance ratings returned and his income returned to
approximately the level it was in 2009.

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.
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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. (November 9, 1999).
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). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find substantial evidence supports the AJ’s Decision. Specifically, we
find the evidence shows that Complainant’s overtime hours were reduced by S1 as alleged.
The record shows that the overtime for other employees was also reduced during the same
year, but that no other employee occupied a position comparable to Complainant and no other
employee’s overtime was capped at the same rate that Complainant’s overtime was capped by
S1. We find that S1 and S2 also experienced a decrease in overtime pay, but that they have
different job duties and are not similarly situated to Complainant and cannot be directly
compared to him.

We find no dispute that the reprimand Complainant received was based in part upon the
condition of a building that Complainant was directed to have cleaned and readied for an
aircraft and that at the time S2 inspected the identified building, the building was not clean.
We find no evidence that Complainant’s national origin or age prompted S2 to criticize
Complainant’s performance regarding the cleaning assignment, but that this charge as well as
the condition of the 971 files was accurately described in the notice of proposed suspension that
Complainant received. Complainant responded to the charges and ultimately the suspension
was reduced to a reprimand which took into consideration Complainant’s long performance
history with the Agency and the circumstances under which the charges occurred.

We find, as did the AJ, that Complainant’s performance rating was reasonably lower in the
year he received the reprimand. We find nothing to show that Complainant’s national origin
or age motivated S1 to lower Complainant’s performance rating. Additionally, we note that S1
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was critical of Complainant’s performance, but the evidence does not show that Complainant
was degraded or harassed in the presence of his peers as alleged.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Order finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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”
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 22, 2015