Daniel B.,1 Complainant,v.Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Dec 17, 2019

2019002433 (E.E.O.C. Dec. 17, 2019)

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

Daniel B.,1
Complainant,

v.

Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.

Appeal No. 2019002433

Agency No. 9V1M14075F16

DECISION

On December 21, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 20, 2018 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., and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Sheet Metal Mechanic, WG-3806-10, at the
Agency’s Sheet Metal Component Section, 551 Commodities Maintenance Squadron, Air Force
Material Command, at Tinker Air Force Base (AFB), Oklahoma.

On July 22, 2014, Complainant filed a formal EEO complaint claiming he was subjected to
discrimination and harassment/a hostile work environment based on color (black), disability, and
in reprisal for prior EEO activity when:

a. on April 17, 2014, he was issued a Notice of Decision to Suspend for Ten (10) Calendar
Days, effective April 18, 2014 through April 27, 2014;
b. on April 29, 2014, he was issued an Addendum to Sick Leave Abuse Counseling;

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.
2019002433

2
c. on May 5, 2014, he received an AF IMT 860B, Civilian Progress Review Statement
which he feels was rated lower than he deserves;

d. on August 4, 2014, he was issued an Addendum to Sick Leave Abuse Counseling;

e. on September 16, 2014, his first-level supervisor issued him a Form 971 for leaving work
without proper authorization, and charged him four hours of Absent Without Official
Leave (AWOL) for September 15, 2014;

f. on October 6, 2014, he was issued a Notice of Proposed Five (5) Day Suspension for
leaving the job without permission;

g. on October 22, 2014, he became aware that his first-level supervisor entered his time
incorrectly for pay period October 5 – 18, 2014, when the supervisor entered 18 hours of
annual leave into the time system instead of 18 hours of sick leave;

h. on November 13, 2014, he received a Notice of Decision to Suspend for Five (5)
Calendar Days, effective November 14-18. 2014;

i. on February 20, 2015, his first-level supervisor belittled him in the presence of the entire
shop by telling him several times “you will finish the part now” causing the entire shop to
laugh at him as the first-level supervisor walked away;

j. on March 24, 2015, his first-level supervisor issued him a Civilian Progress Review
Worksheet (860B) stating that Complainant failed to properly maintain WCD/173
documents; and

k. on November 13, 2014, he received a Notice of Decision to Suspend for Five (5)
Calendar Days, effective November 14-18, 2014.2

After the investigation of the 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
Judge. In accordance with Complainant’s request, the Agency issued a final decision on
September 20, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

2 We determine that the original configuration of the subject claims was not clear. We have
therefore re-designated the subject claims as claims a – k, for ease of reference. Moreover, the
record reflects that color as a basis and claims d – k were later amended to the instant formal
complaint.

2019002433

3
In response, the Agency argues that Complainant’s appeal was not timely filed, and accordingly,
the appeal should be dismissed.

ANAYLSIS AND FINDINGS

As a threshold matter, we note that the Agency argues that Complainant’s appeal was untimely
filed. The record contains no evidence as to when the Agency’s final decision was delivered to
Complainant’s home address. Therefore, in absence of specific evidence, indicating when
Complainant received the decision, we find that Complainant’s appeal was timely filed.

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 complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, 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 based on 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).

Complainant identified his disabilities as depression, intellectual and mental disabilities, and
high blood pressure. For purposes of this analysis, we assume, without so finding, that
Complainant was an individual with a disability as defined by the Rehabilitation Act.

Responsible Agency management articulated legitimate, nondiscriminatory reasons for its
actions, as more fully discussed below.

2019002433

4
Regarding claim a, Complainant asserted that on April 17, 2014, he was issued a Notice of
Decision to Suspend for Ten (10) Calendar Days effective April 18, 2014 through April 27,
2014.

The Sheet Metal Mechanic/Pneudraulic Systems Mechanic/Electrical Equipment Repairer
supervisor (white) stated that during the relevant period, he was Complainant’s first-level
supervisor. The supervisor stated that he issued Complainant a Notice of Decision to Suspend
for ten days because Complainant did not comply with the requirements of the Addendum to the
Sick Leave Abuse Counseling letter dated September 25, 2013. Specifically, the supervisor
stated that Complainant was placed on notice to maintain a regular work schedule on a full-time
basis, or to submit acceptable medical documentation in support of his absences “within fifteen
days or be subject to possible separation from Air Force employment.”

The supervisor stated that Complainant did not provide him documentation in support of his
absences from July 25, 2013 to January 2, 2014, “as required by the addendum that I had mailed
him.” The supervisor stated that he coordinated with Employee Relations and determined to
issue Complainant a 10-day suspension “as the mid-range of the recommended penalty for
deliberate refusal to comply with a directive.”

The Sheet Metal Mechanic (Aircraft) Supervisor, Sheet Metal MISTR Section Chief (color not
identified in the record) stated that during the relevant period, he was Complainant’s second-
level supervisor (Supervisor 2). He noted that Complainant was absent from duty for several
months in 2013, and did not provide any medical documentation in support of his absences.
Supervisor 2 stated that he was considering proposing a removal. Complainant, however,
reported to duty on January 13, 2014, with no medical restrictions and supporting medical
documentation.

Supervisor 2 further stated that he was advised by Employee Relations to issue Complainant a
10-day suspension “in lieu of removal for Complainant’s failure to comply with an Addendum to
Sick Leave Counseling.” Supervisor 2 stated, however, Complainant failed to comply with the
requirements to provide medical documentation in support of his absences.

Regarding claims b and d, Complainant alleged that on April 29, 2014 and on August 4, 2014, he
was issued two Addendum to Sick Leave Abuse Counseling.
.
The supervisor explained that Complainant was issued an Addendum to Sick Leave counseling
because he had been previously counseled in January 2014 because he had used 24 hours of
leave and earned 36 hours. He further stated that on August 4, 2014, he issued another
Addendum to Sick Leave Abuse Counseling to Complainant because he had previously been
counseled on April 29, 2014. He stated since then, Complainant had used 488 hours of sick
leave and earned 28 hours.

2019002433

5
Furthermore, the supervisor noted that Complainant verbally informed him that he was using
sick leave to go to the VA and that his leave usage was sufficient to support his sick leave
request, but that “it was not sufficient to support his requirement to comply with the addendum
to sick leave abuse counseling that required him to provide supporting medical documentation
for his absences due to sick leave.”

Regarding claim c, Complainant alleged that on May 5, 2014, he received a Civilian Progress
Review Statement which Complainant believed was undeserved.

The supervisor explained that he used the Civilian Progress Review worksheet to document
anytime a mechanic fails one or more of their duty elements. He stated that he issues the form to
get the mechanic’s attention and if the mechanic corrects the infraction then he would consider
the matter closed. The supervisor stated that the Technical Order monitor notified him that
Complainant had checked out a laptop that had not been returned by the end of the shift. He then
informed Complainant that he had failed a performance element by not turning in his Technical
Order laptop. The supervisor stated that he does not recall Complainant’s response. However,
Complainant signed the form.

Regarding claim e and f, Complainant alleged that on September 16, 2014, the supervisor issued
him a Form 971 for leaving work without proper authorization and charged him four hours of
AWOL for September 15, 2014. On October 6, 2014, he was issued a Notice of Proposed Five
(5) Day Suspension for leaving the job without permission for the September 15 incident.

Supervisor 2 stated that the supervisor issued Complainant a proposed 5-day suspension for
leaving the job without permission and charged him 4 hours of AWOL. Supervisor 2 was the
deciding official because Complainant left work without authorization. He stated that “all
employees must have their leave approved.”

Regarding claim g, Complainant asserted that on October 22, 2014, he became aware that his
first-level supervisor entered his time incorrectly for pay period October 5 – 18, 2014, when he
entered 18 hours of annual leave into the time system instead of 18 hours of sick leave.

The supervisor explained that on October 16, 2014, Complainant went to the Office of Medical
Flight and returned with a Recommendation for Duty form listing his medical restrictions as
follows: no lifting over 10 pounds and light duty work only. The supervisor stated that because
he did not have any light duty assignment on the swing shift, he moved Complainant to the day
shift under a temporary supervisor. At that time, the temporary supervisor entered
Complainant’s time for pay period ending October 18, 2014. Complainant’s timesheet showed
that the temporary supervisor granted him 18 hours of sick leave “but it appears that it
automatically reverted to annual leave because his sick leave was insufficient to cover the
absence.”
Furthermore, the supervisor noted that on October 23, 2014, Complainant returned to the Office
of Medical Flight and turned in a Recommendations for Duty listing no restrictions, and he
returned to swing shift.
2019002433

6
Regarding claims h and k, Complainant claimed that on November 13, 2014, he received a
Notice of Decision to Suspend for Five (5) Calendar Days, effective November 14-18. 2014.3

The supervisor noted that on September 15, 2014, Complainant filled out a Form 71 requesting
unscheduled leave. The supervisor denied the request “due to workload and the shop working
overtime that day. While he was there in my office, I verbally told him it was denied.” Later
that day, he noted that Complainant was not in the work area and while talking with the Sheet
Metal Mechanic, he informed him that Complainant had told him that he was going home, and
he needed to find someone to finish Complainant’s job. The supervisor therefore charged
Complainant 4 hours of AWOL. He also issued another 5-day suspension as a result of this
incident.

Regarding claim i, Complainant alleged that on February 20, 2015, the supervisor belittled him
in the presence of the entire shop by telling him several times “you will finish the part now”
causing the entire shop to laugh at him as the first-level supervisor walked away.

The supervisor stated that Complainant had been working on the Planned Depot Maintenance
(PDM) escape hatch for several weeks “which would be an extensive amount of time for this
task.” He stated that on February 20, 2015, he went to Complainant’s work area and asked him
what else was needed to complete the task and Complainant responded he needed to complete
installing the seal. The supervisor stated he expected Complainant to complete the task at that
time “because the rest of the PDM workload was ready to go to aircraft and this was the last item
they were waiting on.”

The supervisor stated at that time there was only one other employee in the immediate area when
he and Complainant had a discussion concerning his task. With respect to Complainant’s
allegation that the supervisor belittled him in front of the entire shop, he denied it. He stated that
he spoke to Complainant in his normal tone and that as a supervisor, it was his job “to check the
status of workload and ensure it is being completed in a timely manner.”

Regarding claim j, Complainant asserted that on March 24, 2015, his first-level supervisor issued
him a Civilian Progress Review Worksheet stating that Complainant failed to properly maintain
WCD/173 documents.

The supervisor noted that there was not an interim performance appraisal so there were no
ratings. He explained that a WCD 173 card is scanned when an employee starts work and when
the work is complete, the card is completed in the Time and Attendance system showing that the
task had been completed.

3 We note claims h and k are identical. The Agency indicated that the claims were accepted
separately, one as a disparate treatment claim, and the other as part of a harassment claim. We
have considered this singular event under both theories of discrimination.

2019002433

7
The supervisor further stated that Complainant failed to complete 173 cards on approximately 12
occasions before he decided to issue the progress review worksheet for the failed element.

As detailed above, management witnesses sufficiently articulated legitimate, non-discriminatory
reasons for their actions. Neither during the investigation, nor on appeal, has Complainant
proven, by a preponderance of the evidence, that these proffered reasons were a pretext for
unlawful discrimination.

Harassment

The same allegations discussed above were proffered by Complainant to support his
harassment/hostile work environment claim. To prove his 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 color, disability and prior protected activity. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself. Here, as
already discussed, Complainant simply has provided no evidence to support his claim that his
treatment was the result of his color, disability and/or prior protected activity.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.4

4 On appeal, Complainant does not challenge the July 31, 2014 partial dismissal issued by the
agency regarding one other claim. Therefore, we have not addressed this issue in our decision.

2019002433

8
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.
2019002433

9
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

December 17, 2019
Date