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

Equal Employment Opportunity Commission

Aug 13, 2019

2019000175 (E.E.O.C. Aug. 13, 2019)

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

Lula N.,1
Complainant,

v.

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

Appeal No. 2019000175

Agency No. 5W1C14006

DECISION

On October 10, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 26, 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.

BACKGROUND

During the period at issue, Complainant worked as an Industrial Engineer Technician at the Air
Combat Command, 20th Fighter Wing, 20th Civil Engineer Squadron (20 CES), Asset
Accountability facility in Shaw Air Force Base, South Carolina.2

On July 9, 2014, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her in reprisal for prior EEO activity when:

a. in May 2014, her annual appraisal was delayed for the preparation of her Performance
Improvement Plan (PIP);

b. in May 2014, she was given an “Unacceptable” rating on her annual appraisal;

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.

2 Complainant retired from Agency employment effective March 26, 2015.
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c. on May 13, 2014, she was subjected to a PIP by her supervisor for unacceptable
performance; and

d. on May 14, 2014, she was not given adequate time to improve her unacceptable
performance, in accordance with the 60-day period indicated in the PIP.

After the investigation of the formal complaint, 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 (AJ). Complainant initially requested a hearing. The AJ, however, issued
an order dated May 10, 2017, dismissing Complainant’s hearing request, finding that
Complainant had not complied with the AJ’s orders. Consequently, the Agency issued the
instant final decision on October 26, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

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 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, 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 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).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.
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The record reflects that Complainant was assigned to the Resources Flight as a Manpower
Management Analyst until April 2012, when her position was eliminated as part of a Reduction
in Force (RIF). Following the RIF, Complainant was placed into a vacant Industrial Engineer
Technician position on April 2, 2012, with the 20th Civil Engineer Squadron (20 CES), before
being reassigned to the same position in the Asset Accountability Element, on November 8,
2012.

The record reflects that a Civilian Progress Review Worksheet is usually issued to an employee
at the mid-point of the performance appraisal cycle. The Civilian Progress Review Worksheet
assesses an employee’s performance on program elements and other performance factors against
a scale which ranges from “Needs Significant Improvement” on the far left of the scale to
“Needs Little or No Improvement” on the far right of the scale.

In claim a, Complainant asserted in May 2014, her annual appraisal was delayed for the
preparation of her PIP.

The Chief, Asset Accountability (unknown prior protected activity) was Complainant’s
supervisor during the relevant period. The Chief asserted that Complainant’s appraisal was
completed in a timely manner and that it was submitted to his supervisor on April 3, 2014. The
Chief stated, however, “for clarity, if this is considered a delay, it was based on time with regards
to coordination and guidance with the CPO [Civilian Personnel Office].” The Chief stated that at
that time, he was working with CPO concerning Complainant’s performance and was waiting
for the them to sign off the PIP.

In claims b and c, Complainant alleged that in May 2014, she was given an “Unacceptable”
rating on her annual appraisal, and on May 13, 2014, she was subjected to a PIP by her
supervisor for unacceptable performance.

The Chief stated that during the relevant period, Complainant “had not been improving over the
course of the rating period and it became apparent that I would likely need to place her on a PIP.
The Chief stated that in early March 2014, he worked with the Human Resources (HR) Specialist
“to consider the best way forward. I also attended a CPO annual appraisal class session for
supervisors. I considered Complainant’s performance over the entire appraisal cycle to that point
(early in the 12th month) and her performance had still not been up to standards.”

The Chief explained that in February 2014, he informed Complainant that her performance was
“not up to standards and needed to be improved. This same message was communicated to her
in June and September 2013.”

The Chief notified Complainant that she was being placed on a PIP because her performance was
unacceptable in two critical elements of her Civilian Core Personnel Document. The Chief noted
that regarding Element (2), Standard B, Complainant did not actively ensure that the Unit
Manning Document (UMD) accurately reflected current status within 20 CES. Specifically, the
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Chief stated that there were items on the UMD that were incorrect and Complainant “was
supposed to work with supervisors as needed to complete/submit an Authorization Change
Request (ACR) to bring the information up to date. She did not work with supervisors to get
correct data and did not submit correct data to manpower to have the UMD updated.”

Regarding Element (4), the Chief noted that Complainant was “consistently submitting Request
for Personnel Actions (RPA) packages late and the packages submitted contained numerous
errors. When changes were noted to her, she often resubmitted the packages with some items
still not corrected and the resubmissions were often late.”

The Chief stated that during Complainant’s mid-year performance review, they discussed her
“consistently late submissions, the poor quality (inaccuracy) of her work, non-submission of
work and the importance of performing her job in a manner that supported the squadron’s
mission. In each performance discussion, I made sure she understood she was being paid to do a
job and I would do my job and hold her accountable.”

The Chief explained that on May 13, 2014, the PIP was issued to Complainant along with the
annual appraisal. Specifically, the Chief stated that the PIP was for a 60-day period after the date
it was issued. The Chief assessed Complainant’s performance under the PIP from May 30, 2014
through August 6, 2018, which was 68 days.

The HR Specialist (no prior protected activity) stated that in March 2014, the Chief contacted
her, stating that Complainant’s performance had not improved “since receiving her feedbacks,
and Letter of Reprimand (LOR). Because the appraisal period was coming to end, he had
decided to start a PIP.” The HR Specialist stated that based on the Chief’s decision, she
provided a proposal for a PIP template “for him to complete and requested her 971-Supervisor
folder as well as any documents to support the PIP since the LOR.”

In claim d, Complainant asserted that on May 14, 2014, she was not given adequate time to
improve her unacceptable performance, in accordance with the 60-day period indicated in the
PIP.

The Chief explained that the PIP was issued to Complainant on May 13, 2014 “along with the
annual appraisal. The PIP was for a period of sixty days after the date it was issued. It stated in
the document that we would meet the second Wednesday of each pay period, and it happened
that the second Wednesday of the current pay period fell on Wednesday, May 14, 2014.” The
Chief further stated that during the first meeting on May 14, 2014, he and Complainant did not
discuss her “performance of one day in the PIP. As it was, I used it to address any questions she
may have had with regard to what was identified in the PIP. I thought it was a good opportunity
to go over the document again; however, her response to me during that first meeting was that
she had not even looked at the document since it was issued to her.”

Furthermore, the Chief stated that he suggested Complainant to go through it and make sure she
understood it “because she was going to be held accountable to comply with it. There was
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nothing further to discuss and she did not identify that she had any questions to ask and the
meeting ended.”

The HR Specialist explained that during the relevant period, management officials provided
background information on how they had worked with Complainant “on meeting the identified
elements. They provided her with [a] PIP calendar which talked about the tasks related to the
letter she received on May 13, 2014 and showed comments on how tasks were not improved and
conversations the supervisor had with the employee regarding what was missing.”

The HR further noted that Complainant did not satisfactorily complete the PIP. The HR
Specialist stated that Complainant was given 60 days after the receipt of the PIP and “she was
given an extension for personal reasons. However, according to the supervisor, she is still not
working up to standards.”

Complainant asserted that she was not given sufficient training to accomplish her job. The HR
Specialist noted that Complainant mentioned this matter to her. The HR Specialist then referred
Complainant to her supervisor to see if there was any specialized training she could take. The
HR Specialist stated that Complainant had been reassigned to her current position due to a RIF
and “a lot of the skills she is required to know are things she would have been familiar with
[from] her prior job in Manpower section. She indicated that [Chief] was not aware of any
specific training, but would check into it. There was an ACES-PR training that he provided her
information on.”

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.

Finally, we note that Complainant, for the first time on appeal, argued that she was forced to
retire as a result of intimidation and that her retirement constituted constructive discharge. The
investigative report, however, reflects that the matters which were accepted for investigation
were confined exclusively to the claims discussed above. The Commission has held that it is not
appropriate for a Complainant to raise new claims for the first time on appeal. See, e.g. Shela O.
v. Dep’t of the Army, EEOC Appeal No. 0120113826 (Dec. 18, 2015) (citing Torres v. U.S.
Postal Serv., EEOC Appeal No. 01934108 (June 10, 1994)). Should she wish to pursue these
claims, Complainant is advised to contact an Agency EEO Counselor.

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

August 13, 2019
Date