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

Equal Employment Opportunity Commission

Jul 18, 2018

0120161531 (E.E.O.C. Jul. 18, 2018)

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

Philip H.,1
Complainant,

v.

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

Appeal No. 0120161531

Agency No. 5V1C10004F16

DECISION

On April 2, 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
March 16, 2016, final decision 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 decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a contractor for Reliable
and Loyal Management (RLM) Services and assigned to work as a Clinical Psychologist at the
Agency’s Mental Health Clinic (MHC), Medical Operations Squadron facility in Seymour
Johnson Air Force Base (SJAFB), North Carolina. His first-level supervisor (Sl) was the
Commander of the Mental Health Flight. His second-level supervisor (S2) was the Commander
of the 4th Medical Operations Squadron. His third-level supervisor (S3) was the Chief of
Medical Staff of the 4th Medical Group.

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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On July 21, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of national origin (Egyptian), age (72), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On May 5, 2010, he was terminated by Reliable and Loyal Management
(RLM) Services from his contractor position.

2. Complainant was subjected to a hostile work environment on the bases of
reprisal (this complaint), national origin (Egyptian), and age (72) from
November 3, 2008, through December 23, 2009, when:

a) In November 2008, Sl assigned the most junior and inexperienced
Mental Health Technician to “initiate” Complainant to his new job;
b) In November 2008, S1 accused him of yelling at the Mental Health
Technician;
c) In November 2008, Sl did not assign a Mental Health Technician to
help him with intakes, when other providers were assigned a technician;
d) On December 23, 2009, Sl made unspecified humiliating comments to
Complainant;
e) On November 9, 2009, a management employee undermined him by
overruling his decision to request a patient who had traveled for a mental
health evaluation to stay for another day; and
f) On May 5, 2010, he was terminated by RLM Services from his
contractor position.

The Agency dismissed the complaint on September 15, 2010, for failure to state a claim. The
Agency asserted that Complainant was a contractor, not an Agency employee. On appeal, the
Commission found that Complainant was an Agency employee for EEO purposes and thus
reversed the Agency’s dismissal of claim 1. Complainant v. Department of the Air Force, EEOC
Appeal No. 0120110146 (Aug. 5, 2014). The Commission affirmed the dismissal of claim 2 for
untimely EEO Counselor contact. Id. Complainant filed a request for reconsideration and the
Commission denied the request, but vacated the Commission’s prior decision affirming the
Agency’s dismissal of claim 2. Complainant v. Department of the Air Force, EEOC Request No.
0520140534 (July 10, 2015). The Commission remanded the entire complaint to the Agency for
further processing. Id.

After conducting an investigation, the Agency provided Complainant with notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not
request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination.

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With respect to Claim 1, the Agency found that the Complainant failed to prove that the
Agency’s articulated legitimate, nondiscriminatory reasons for its challenged actions were a
pretext for discrimination. Specifically, the Agency found that on May 5, 2010, RLM Services
informed Complainant that the Agency notified RLM of its continued dissatisfaction with his
performance. The record revealed that Agency management had several conversations about
performance issues with Complainant and attempted to instruct Complainant about the Agency’s
expectations regarding its patient treatment standards. The Agency noted that S1 explained that
MHC “desperately needed a good therapist at that time as the clinic was busy and understaffed”
but Complainant “had difficulty adapting to the clinical work environment and the standards of
the clinic” and “[h]is personality made it difficult to be coachable or trainable.” According to the
record, S1 determined that Complainant was not able to practice independently and he
recommended that Complainant’s services be terminated immediately.

Regarding Claim 2, the Agency found that Complainant failed to present any evidence that the
alleged acts in 2(d) occurred. The Agency also found that, with respect to the incidents
delineated in 2(a-c) and 2(e), Complainant did not establish that he had been subjected to
unwelcome conduct that was severe or pervasive or based on his national origin, age, or prior
EEO activity, and therefore did not establish that he was subjected to a discriminatory hostile
work environment.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

We find that Complainant has failed to show that the Agency’s legitimate, nondiscriminatory
reasons were a pretext for discrimination. Regarding the hostile work environment claim, we
find that Complainant failed to show that some of the incidents either occurred, or if they did
occur, that any of the incidents were motivated by discrimination. When the termination incident
is removed from the hostile work environment claim upon our finding of no discrimination in
claim 1, we find that the remaining incidents were not sufficiently severe or pervasive so as to
constitute a discriminatory, hostile work environment.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.
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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

July 18, 2018
Date