Daisy B.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

May 16, 2018

0120162130 (E.E.O.C. May. 16, 2018)

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

Daisy B.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120162130

Agency No. 9V1M15089

DECISION

On June 22, 2016, 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
May 23, 2016, final decision 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Our review is de novo. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Security Assistant at
the Agency’s Tinker Air Force Base, in Oklahoma.

On September 11, 2015, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (African-American), sex (female),
disability (uterine fibroid tumors), and in reprisal for her prior protected EEO activity under Title

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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VII and the Rehabilitation Act when on May 11, 2015, she was issued her 2014/2015 Civilian
Rating of Record and it showed “P” for Performance Award, but she did not receive an award. 2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected her to discrimination as
alleged. In the Civilian Rating of Record, the possible ratings with respect to each critical
performance elements are “meets” and “does not meet.” An overall rating of “Acceptable” or “R”
is assigned when an employee performs in accordance with and meets the standards for all critical
performance elements. An overall rating of “Unacceptable” or “N” is assigned when an employee
does not meet the standards for one or more of the critical performance elements.

The record reflects that Complainant received an overall rating of “R – Acceptable” on her Civilian
Rating of Record for the rating period of April 1, 2014 – March 31, 2015. The Agency stated in
Part D – Performance Award of the form, the letter “P” for Performance was included, but did not
include an award amount. Complainant’s Supervisor supervised thirteen employees, eleven of
whom were military, and two civilian, including Complainant. The other civilian employee, like
Complainant, was a Security Assistant and had engaged in EEO activity and is an African-
American female. This comparison is not an individual with a disability. The comparison received
a rating of “R-Acceptable” for the same rating period and a performance award in the amount of
$750.00.

The Agency stated that the Supervisor did not recommend Complainant for a performance award.
The Agency asserted that the Supervisor informed the Supervisory Security Specialist that he had
erred in marking “P” for performance award and that he explained the mistake to Complainant.
According to the Agency, awards were issued to employees who exceeded performance
requirements.

The Agency determined that Complainant did not establish a prima facie case of disability
discrimination. The Agency acknowledged that the Supervisor did not testify in this matter as he
was retired at the time of the investigation, and the Agency had no contact information for him.
The Supervisory Security Specialist stated that he was unaware of Complainant’s specific medical
condition. According to the Supervisory Security Specialist, Complainant’s supervisors informed
him that she had a recurring medical condition that periodically prevented her from coming to
work or coming to work on time. The Supervisory Security Specialist explained that he did not
regard Complainant as having a physical disability that substantially limited her in any of her major
life activities.

2 Complainant raised a claim of harassment in her formal complaint pertaining to several incidents
but subsequently clarified that these incidents were intended to serve as background information
for the accepted claim concerning the denial of a performance award.
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According to the Supervisory Security Specialist, he generally followed an employee’s
supervisor’s award recommendation and ensured that the award did not exceed the award
maximum based on the employee’s pay grade and time in service. The Supervisory Security
Specialist acknowledged that he did not know the specific reasons the Supervisor did not
recommend Complainant for an award. However, the Supervisory Security Specialist maintained
that the Supervisor indicated to him that Complainant had not merited an award and he believed
the Supervisor thought she was under-performing her required duties. The Supervisory Security
Specialist explained there was a limited amount of award dollars/time off awards available and
therefore supervisors had to compare the work of the employees in their section to ensure that the
employees receiving awards were entitled to receive them.

The Agency noted that the Supervisory Security Specialist stated that he recalled conversations
about phone calls and e-mails concerning Complainant’s lack of customer service orientation. The
Supervisory Security Specialist asserted that these conversations indicated that Complainant had
been rude, was not helping customers as needed, and was on her phone texting. According to the
Supervisory Security Specialist, although none of Complainant’s actions resulted in formal
disciplinary action, he believed her Supervisor had counseled her about her conduct. The Agency
noted that the Commander stated that awards were based on the employees’ performance appraisal
and their supervisors’ recommendations. According to the Commander, time off and monetary
awards were given to employees who had not only met but had exceeded their performance
standards. The Agency determined that it articulated legitimate, nondiscriminatory reasons for not
issuing Complainant a performance award.

The Agency stated that Complainant attempted to establish pretext by arguing that her Supervisor
told her that although she had performed well, she would not be receiving a performance award
because she had called in sick. The Agency noted that Complainant contended that the Supervisor
never indicated to her that it was a problem and she had not received any counseling or warning
about calling in sick or being absent. Complainant added that she occasionally used leave for her
children’s activities and for her mother, who cannot walk and needs assistance at times.

The Agency observed that Complainant further argued that she believed her Supervisor denied her
a performance award in May 2015 because of her absences from work in 2011 and 2012.
Complainant speculated that her prior supervisor at that time was friends with the Supervisor and
he might have discussed with him memoranda he had written concerning her absences from work
due to her pregnancy. The Agency noted that the Supervisory Security Specialist stated that the
memoranda would have had no effect on management’s decision not to issue a performance award
because the memoranda concerned issues outside of the rating period.

Complainant further argued that she merited an award given that her appraisal indicated that she
had met all of the performance elements of her position. Additionally, Complainant pointed out
that she worked well with customers and coworkers, and that there were no issues with her
performance.
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Complainant maintained that she had performed above and beyond by doing her duties as well as
the duties of her coworker during her absence, and that she had assisted with processing contractor
badges. Complainant stated that she was not informed that management had received calls and
emails about her alleged rudeness to customers, and she asserted that several customers had sought
her services because she provided the best customer service.

Complainant also claimed that she deserved a performance award in light of the fact that her
Supervisor had annotated her evaluation with a “P”, indicating that he recommended her for a
performance award. The Agency stated that the Supervisory Security Specialist explained that the
Supervisor had completed the form incorrectly, and that the award section did not reflect an award
amount. The Agency further pointed out that Complainant acknowledged that her Supervisor
informed her that he had not recommended her for a performance award.

Complainant claimed that her Security Assistant coworker received a performance award even
though they had the same duties and the coworker was absent as much as, or more than she had
been. The Agency noted that the Supervisory Security Specialist denied that the performance
awards were based on absences from work and that Complainant acknowledged that the Supervisor
had not questioned her or the coworker about their absences. The Supervisory Security Specialist
stated that the coworker had volunteered to perform additional responsibilities/duties outside of
her core duties which warranted some type of recognition or award. In distinguishing between
Complainant and the coworker, the Agency stated that the coworker was assessed as having
“exceeded” all of her performance elements and Complainant was evaluated as only having “met”
most of her performance elements. The Agency stated that the coworker had responsibility for
two programs (the Entry Authority Letter program and Electronic Records Management System)
with Complainant’s assistance, as opposed to Complainant being responsible for one program
(background checks) with the coworker’s assistance. According to the Agency, the coworker
outperformed Complainant in terms of background checks (10.5K versus Complainant’s 10.2K),
assisted in the management of more base visitor passes than Complainant (25K versus 10K), and
conducted more foreign visitor requests than Complainant (401 versus 150).

The Agency determined that Complainant provided no evidence that her duty performance
exceeded the requirements of her positon or otherwise merited a performance award. Complainant
argued that her treatment had been worse since her prior EEO activity but the Agency asserted she
did not support this claim with evidence, and that the coworker also had engaged in EEO activity.
The Agency further stated that the coworker is the same sex and race as Complainant and that this
indicates that the denial of the performance award was not motivated by discriminatory animus.
The Agency determined that Complainant failed to establish that its reasons for not issuing her a
performance award were pretext intended to hide discriminatory motivation.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she met all four of her performance elements. Complainant
argues that she earned her sick leave and annual leave and was never overdrawn. Complainant
maintains that her use of sick leave has been improperly considered as a performance issue.
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According to Complainant, in contrast to the Supervisory Security Specialist’s statement, her
coworker did not volunteer for extra duties. Complainant argues that the Agency has a recall roster
and should have contact information for the Supervisor.

In response, the Agency asserts that there is no evidence that Complainant had a physical
impairment that substantially limited any of her major life activities. The Agency points out that
Complainant did not provide it with any medical documentation to support her alleged medical
condition and it did not regard her as having a disability. The Agency notes that Complainant
never asked for an accommodation and that Complainant stated that she is able to perform all of
the essential functions of her position. With regard to the bases of race, sex, and reprisal, the
Agency asserts that the coworker comparison was the same race and gender as Complainant and
had also engaged in prior EEO activity. The Agency maintains that the coworker exceeded all of
her performance elements and Complainant merely met most of her performance elements and
thus did not qualify for an award.

ANALYSIS AND FINDINGS

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). She must generally 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. Co. 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. To establish a prima facie case of reprisal, Complainant must show that: (1) she engaged in
protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she
was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No.
01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency 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).

With regard to Complainant’s claims of sex and race discrimination, we observe that the
comparison cited by Complainant is also female and African-American. Given that they are in the
same protected groups, we find that Complainant has failed to set forth a prima facie case of sex
or race discrimination. We shall assume arguendo that Complainant has established a prima facie
case of reprisal. We shall also assume arguendo that Complainant is an individual with a disability
and has set forth a prima facie case of disability discrimination.

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The Agency explained that Complainant was not issued a performance award because
Complainant was evaluated as only having met most of her performance elements and there was a
limited amount of funds available for performance awards. According to the Commander, time
off and monetary awards were given to employees who had not only met but had exceeded their
performance standards. The Supervisory Security Specialist noted that he heard Complainant had
been rude, was not helping customers as needed, and was on her phone texting. We find that the
Agency articulated legitimate, nondiscriminatory reasons for Complainant not receiving a
performance award.

Complainant attempts to establish pretext by arguing that her Supervisor informed her that her use
of sick leave was the reason she was denied a performance award. Complainant maintains that the
Agency has a recall roster and should have contact information for the Supervisor in order to obtain
his affidavit testimony. Complainant argues that she and the coworker had the same duties and
the coworker was absent as much as, or more than she had been. Complainant contends that her
job performance merited an award. Complainant states that she worked well with customers and
coworkers, and that there were no issues with her performance. Complainant argues that she had
performed above and beyond by doing her duties as well as the duties of her coworker during her
absence, and she had assisted with processing contractor badges. Complainant stated that she was
not informed that management had received calls and emails about her alleged rudeness to
customers, and she asserted that several customers had sought her services because she provided
the best customer service.

Complainant argues that the Agency should have made more of an attempt to contact the
Supervisor in order to obtain his testimony. Complainant submits on appeal a recall roster but it
does not contain contact information for the Supervisor and no evidence has been presented that
the Agency intentionally did not seek such information. We note that in any event, neither the
Agency nor the EEOC has the power to compel testimony from a witness who no longer works
for the Agency. See Hick v. Dep't of the Air Force, EEOC Appeal No., 0120063925 (November
28, 2007); Wiatr v. Dep't of Defense, EEOC Appeal No. 0120073515 (October 29, 2010). The
Supervisory Security Specialist stated that Complainant’s use of sick leave would not have been
utilized against her in evaluating her performance. We find that Complainant has not presented
sufficient evidence to refute this assertion. We discern little support for Complainant’s contention
that the notation of a “P” establishes that it was intended that she receive a performance award.
We note that no financial amount was specified and Complainant acknowledged that her
Supervisor informed her that he made a mistake in marking the “P” on her rating form.

In terms of Complainant’s job performance versus that of her coworker, we observe that the
coworker had responsibility for two programs (the Entry Authority Letter program and Electronic
Records Management System) with Complainant’s assistance, as opposed to Complainant being
responsible for one program (background checks) with the coworker’s assistance. According to
the Agency, the coworker outperformed Complainant in terms of background checks, assisted in
the management of more base visitor passes than Complainant, and conducted more foreign visitor
requests than Complainant. We find that the record supports the Agency’s contention that the
coworker was more deserving of a performance award.
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Complainant appears to have at a minimum performed at an acceptable level but in light of funding
limitations, the Agency determined that an award required a greater level of performance. We find
that Complainant has not established that her prior EEO activity or her disability were factors in
the denial of a performance award.

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.

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).
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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.
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

May 16, 2018
Date