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

Equal Employment Opportunity Commission

May 9, 2018

0120162085 (E.E.O.C. May. 9, 2018)

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

Kylee C.,1
Complainant,

v.

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

Appeal No. 0120162085

Hearing No. 560-2015-00031X

Agency No. 9V1M14026F16

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 May 12, 2016, final order
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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 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.

BACKGROUND

Complainant worked as a Sheet Metal Mechanic, WG-3806-10, at Tinker Air Force Base in
Oklahoma City, Oklahoma. On March 3, 2014, Complainant filed an EEO complaint in which
she raised claims of harassment and disparate treatment. She identified her first-line supervisor
(S1), her second-line supervisor (S2), and her Work Leader as the responsible management
officials.

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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Complainant’s complaint consisted of the following incidents:

A. Complainant was subjected to a hostile work environment from May 29, 2013 through
December 3, 2013 because of her race (African American), age (54), and disability
(mental/anxiety/stress) as evidenced by the following events:

1. On May 29, 2013, Complainant’s management stated to Complainant: “you act like
you are mad, you are beating or hammering on that fastener like you are mad.”

2. On June 8, 2013, Complainant’s management watched Complainant the entire shift and
removed a napkin she had thrown in the trash and inspected it.

3. On June 10, 2013, Complainant was decertified by her first-level supervisor (S1).

4. On June 17, 2013, S1 allowed two coworkers to interfere with Complainant while
learning and working on inboard and tip parts.

5. From June 25, 2013 to December 2, 2013, Complainant had been denied proper training
as a WG-3806-10 Sheet Metal Mechanic.

6. On August 22, 2013, Complainant’s second-level supervisor (S2) failed to take any
corrective action against S1 and a coworker for their harassing behavior towards her.

7. On November 8 and November 12, 2013, S1 discussed Complainant’s work processes
with co-workers.

8. On November 12, 2013, S2 stated to Complainant: “You can’t retain information and
can’t complete a task on your own.”

9. On November 22, 2013, Complaint was issued a memorandum stating she will report
to the Drill Out Shop, effective December 2, 2013.

B. Whether Complaint was subjected to disparate treatment on the bases of race, age,
disability, and reprisal for filing the instant complaint, when, on December 3, 2013, she
was assigned to the Drill Out Shop, thereby denying her any opportunities for advancement
as a sheet metal mechanic.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s March 18, 2015, motion for a decision without a hearing
and issued a decision without a hearing on March 31, 2016. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.
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Harassment

Incident A1: Complainant averred that on May 29, 2013, her Work Leader said to her, “You act
like you are mad; you are beating or hammering on that fastener like you are mad.” The Work
Leader responded that she did not recall making the statement that Complainant attributed to her.
Complainant admitted that she never told her supervisors or anyone in management that she felt
that she had been harassed by the Work Leader as a result of those comments.

Incident A2: Complainant averred that on June 8, 2013, the Work Leader had watched both her
and her Coworker for their entire shift and had picked up a napkin that Complainant had deposited
into the trash so that she, the Work Leader, could inspect it. The Work Leader denied that she had
watched Complainant for her shift. She also denied removing a napkin from the trash that
Complainant had thrown away. Complainant admitted that she never informed management of
this incident.

Incident A3: Complainant averred that on June 10, 2013, S1 decertified Complainant from the
task of applying sealant to the seams of metallic aircraft parts.2 Complainant had failed a personal
evaluation on this task. The personal evaluation was conducted by a Quality Assurance Specialist.
Complainant herself admitted that she had failed the task during the personal evaluation. S1
averred that when an employee fails a personal evaluation on a particular task, a supervisor is
required to decertify an employee from that task until such time as the employee can be recertified.
Complainant received her recertification for applying sealants on September 24, 2013.

Incident A4: Complainant averred that on June 17, 2013, S1 allowed two Coworkers to interfere
with her while she was attempting to learn about working on inboard and tip parts. However, she
admitted that she never told anyone in management that she felt that she was being harassed or
interfered with by these two Coworkers. They were assisting her in installing the endboard of a
stabilizer. Complainant did not inform either of her Coworkers that she did need or want their
assistance.

Incident A5: Complainant had been a WG-3806 Sheet Metal Mechanic since May 2009 and at
grade level 10 since April 2010. Shortly after she was hired, Complainant completed a six-week
sheet metal course. Generally, by the time a mechanic is promoted to WG-10, most of that
employee’s training has been accomplished. Complainant had received more training than most
new employees. The AJ noted that management had assigned Complainant a new trainer on four
different occasions. Complainant never identified a specific training that she was denied.

Incident A6: Complainant averred that S2 had failed to take any action against S1 and a Coworker
for alleged acts of harassment directed at her. She averred that she had met with S2 to inform him
that she was “stressed,” but did not report any harassment to S2.

2 The AJ erroneously identified the date of this incident as July 16, 2013. AJ Decision, p. 7, ¶ 17.
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Incident A7: Complainant averred that on November 8 and November 12, 2013, S1 had discussed
her work processes with her Co-workers. Complainant had made a workmanship error when
drilling holes in the metal skin of an aircraft stabilizer. There were no indentations on the metal
skin where she was drilling to indicate that holes for rivets needed to be drilled at that spot. She
proceeded to drill holes anyway. Complainant’s Coworkers had seen her work and had brought it
to management’s attention. In addition, S1 had observed Complainant using a punch to beat on
an area of the aircraft stabilizer skin, damaging the stabilizer. The damage to the aircraft stabilizer
skin was so severe that S1 had to contact the engineering department to determine whether or not
the part could be repaired. Complainant was not disciplined for this workmanship issue and her
pay, grade, and work status remained unchanged.

Incident A8: S1 admitted that he had criticized Complainant regarding the drilling incident when
he told her that she did not appear to be retaining the information she had been given during her
training.

Incidents A9 & B: Complainant had been assigned to a detail at the Drill Out Shop, effective
December 2, 2013. S1 and S2 characterized the Drill Out Shop as providing valuable support to
the other shops at the facility, and that being assigned to the Drill Out Shop did not impact on an
employee’s ability to get promoted, grade, pay, or status. They averred that Complainant was
assigned to the Drill Out Shop based on the difficulties she was having in performing her assigned
job tasks, as evidenced by the drilling incident.

ANALYSIS AND FINDINGS

Summary Judgment

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case.

Harassment – Claim (A)

To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
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conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[Complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

To ultimately prevail on her harassment claim, Complainant must show that she 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 incidents occurred because of a protected basis. Only if Complainant satisfies her burden of
proof with respect to both of these elements, motive and hostility, will the question of Agency
liability for discriminatory harassment present itself.

Complainant established the first element of a claim of harassment by virtue of her disability, age,
and race. We would also agree that the conduct of S1 and S2 in the various incidents comprising
Claim A is unwelcome from her own subjective perspective, which is enough to satisfy the second
element. See Floyd L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120150737 (Apr. 27,
2017).

In order to establish the third element of a claim of discriminatory harassment, Complainant must
show that in taking the actions that comprise her harassment claim, S1, S2, or anyone else involved
in those incidents relied on considerations of her disability, age, or race that are expressly
proscribed by the statutes that the Commission enforces. See Aldaberto P. v. Dept. of Veterans
Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016). S1, S2, and the Work Leader provided
a reason for their actions in connection with all nine incidents. As to incidents A1 and A2, the
Work Leader denied that either incident had taken place. Regarding incident A3, S1 was simply
following standard procedures when he decertified Complainant from the task of applying sealants
to sheet metal seams on aircraft due to her failure of the personal evaluation. Complainant was
recertified several months later, presumably after she had passed a personal evaluation on that task.
Concerning incident A4, Complainant was assisted by two Coworkers and never characterized
their attempts to assist her as harassment. With respect to incident A5, there are no indications
that she was ever denied training, but was assigned four different trainers after repeated complaints
about not receiving training. With regard to incident A6, Complainant does not appear to have
reported to S2 any acts of harassment being directed toward her. As to incidents A7 and A8, these
incidents amounted to nothing more than management’s focus on a performance-related issue
concerning incorrect riveting and criticism of Complainant’s handling of the riveting task.
Regarding incident A9, Complainant was assigned to the Drill Out Shop because of her
performance deficiencies in sheet metal work on aircraft.

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On appeal, Complainant raises a number of contentions. She contends that S1 and S2, and perhaps
other managers, were trying to set her up for termination, that the Agency’s attorney withheld
evidence from her case and restricted her from discovery, that witnesses were not called on her
behalf, and that in ruling against her, the AJ cited to irrelevant cases. She also contends that the
investigation was “botched,” and “mishandled” by the Agency and by the Commission. Apart
from these vague, generalized assertions, however, Complainant has not presented affidavits,
declarations, or unsworn statements from witnesses other than herself nor documents that expose
any weaknesses, inconsistencies, or contradictions in the explanations provided by S1, S2, and the
Work Leader for the various incidents to such an extent that a reasonable fact finder could
rationally find those explanations unworthy of credence. See Opare-Addo v. U.S. Postal Service,
EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC
Request No. 0520080211 (May 30, 2008). None of Complainant’s appeal contentions are
sufficient to raise a genuine issue of material fact as to whether S1, S2, or the Work Leader were
motivated by unlawful considerations of her race, disability, or age in connection with incidents
A1 through A9. Because Complainant has not established a connection between her protected
bases and those incidents, no further inquiry is necessary as to whether they rise to the level of
harassment. Tynisha H. v. Dept. of State, EEOC Appeal No. 0120141395 (March 17, 2017).

Disparate Treatment – Claim B

To prevail in her disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). As a first step, 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.

The prima facie inquiry may be dispensed in this case, however, since S1 and S2 articulated
legitimate and nondiscriminatory reasons for assigning her to the Drill Out Shop. See U.S. Postal
Service Board 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). The AJ found that both S1 and S2 had
made the decision to have Complainant report to the Drill Out Shop based upon the fact that she
was having performance difficulties as evidenced by the improper drilling incident. 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 Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of
Community. 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). Pretext can be demonstrated by using the
same method of proof used to satisfy element (3) of the harassment analysis set forth above.
Opare-Addo, supra. Complainant maintains that being assigned to the Drill Out Shop would have
a detrimental impact on her ability to be promoted. The AJ found that this was clearly not the
case. Again, Complainant has not presented any testimonial or documentary evidence that
contradicts the explanations given by S1 and S2 for detailing her to the Drill Out Shop or that
undermine the truthfulness of their statements.
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We therefore agree with the AJ that Complainant has not raised a genuine issue of material fact
regarding the motives of S1 and S2 in assigning her to the Drill Out Shop in December 2013, such
that a hearing was required to make credibility determinations or findings of fact. We find that the
AJ properly found that Complainant had not established that she had been discriminated against
as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final order implementing the AJ’s decision without a hearing finding that Complainant did not
establish that she had been discriminated against.

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 9, 2018
Date