[Redacted], Valentine S., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2020004729 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valentine S.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020004729 Hearing No. 560-2018-00195X Agency No. 9V1M17005F19 DECISION On August 18, 2020, 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 July 10, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Specialist, GS-1910-11, at the Agency’s Air Force Sustainment Center, Oklahoma City Logistics Complex facility in Tinker Air Force Base, Oklahoma. On January 26, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (Black), sex (male), and age, when, from September 19, 2016 to November 10, 2016, Complainant was not given the opportunity to work overtime by his first-level and second-level supervisors. 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. 2020004729 2 Subsequently, he amended his complaint, alleging that the Agency subjected him to discrimination on the bases of race, sex, age, and reprisal for prior EEO activity when: 1. From November 11, 2016 through May 10, 2017, Complainant’s first-level supervisors denied him the opportunity to work overtime in the main tool crib area; 2. On or about April 14, 2017, Complainant’s first-level supervisor sent him an email stating that he had been reassigned from Building 9001 tool crib to Building 3113 and to report to a new supervisor; and 3. On May 15, 2017, Complainant’s first-level supervisor issued Complainant his 2016- 2017 appraisal without providing any feedback during the appraisal cycle and rated him lower than he felt he deserved (no award). The Agency accepted the claims and conducted an investigation, which produced the following pertinent facts: Complainant provided testimony relating to his claims of being denied the opportunity to work overtime in the mail tool crib area; being reassigned; being given an appraisal without having received any feedback during the appraisal cycle; and being rated lower than he deserved and received no award. Regarding his alleged basis of reprisal, Complainant attested that, after his initial complaint regarding the denial of overtime was accepted, the overtime denial continued, he was reassigned, and he received a lower performance rating and denied a performance award. Regarding overtime, Complainant attested that, from November 11, 2016 through May 10, 2017, he was denied the opportunity to work overtime in the main tool crib area. He attested that the overtime selection process was governed by the Union Agreement and he should have been granted overtime because he was qualified to work in any area of the shop. Complainant’s first-level supervisor (S1) attested that she made the overtime decisions for the Complex Tool Program; she determined the need and sought approval from management before running the roster for the employees needed. She explained that she selected employees for overtime based on the processes that require additional time to be worked in a duty day or on the weekend, in accordance with Agency policies and regulations. She explained that employees who are trained in the overtime requirements are given the opportunity to work overtime and overtime is determined based on need. She explained that Complainant was not offered overtime during the period at issue because he was not trained in the task requiring overtime and overtime was not needed for his position of Quality Inspector. She also attested that Complainant did not request to be trained in other areas or work overtime in DRMO, receiving, laser etching, foam protype, foam cut, it build up, or tool procurement. Complainant’s second-level supervisor (S2) attested that overtime was determined and administered based on and to meet customer demand and maintain TAKT (TAKT time is the rate at which a finished product needs to be completed to meet customer demand. 2020004729 3 He also attested that they did not have enough work to keep Complainant busy during the day and there was no need for him to work overtime. He attested that there were no overtime requirements for Complainant and he lacked the skills required for overtime. He explained that personnel generally detailed for overtime requirements were Production Controllers, Tool Repairers, Tool and Parts Attendants, Expeditors, and a Management Analyst who was the Complex Tool Manager. Regarding his reassignment, Complainant attested that, on May 1, 2017, he was informed by S1 that he had been reassigned and directed to report to another supervisor (S3). Complainant attested that this reassignment was not discussed with him and alleged that the reassignment was retaliatory for filing the instant EEO complaint. S1 and S2 generally attested that, on or about April 14, 2017, Complainant was reassigned, effective May 1, 2017, and directed to report to S3. S1 and S2 attested that the reassignment did not affect Complainant’s position description, duties, duty station, or salary and, upon reassignment, Complainant was in the same squadron, but under different supervision, performing duties more closely aligned with his position/position description and past experience/expertise. S1 attested that, when Complainant was in her unit, she had difficulty finding duties that aligned with his position description/core document, noting that he sometimes had up to six hours or an entire day with nothing to do that correlated with his position. S2 attested that Complainant was reassigned to keep him gainfully occupied and working within his core document. S2 also attested that Complainant’s job series was not required in the tool crib. Regarding his performance appraisal, Complainant attested that he believed he deserved a higher performance rating for 2016-2017 because he had done an excellent job, met all required performance expectations, and never received any negative or adverse input from his supervisors regarding his performance. He attested that, in for the previous 15 years he had received monetary performance awards. Regarding Complainant’s performance appraisal, S1 attested that, while he met the requirements of his position, she disagreed with his assertion that his performance warranted a higher rating or award. She attested that Complainant was aware of his shortcomings when he signed off on inspections as complete when he missed multiple defects/deficiencies during the inspection(s) he performed. S2 disagreed with Complainant’s assertion that he deserved a higher rating and award and attested that he was rated based on S1’s assessment of his performance. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request on the grounds that Complainant failed to show good cause for his failure to file a proper and timely Initial Case Report. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 2020004729 4 The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. In response, the Agency argues that its final decision finding no discrimination was procedurally sound, was supported by the preponderance of the evidence, and was correct as a matter of law. 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”). Complainant alleged that the Agency treated him disparately in denying him overtime, reassigning him, and giving him a performance evaluation lower than he though he deserved. Generally, such claims of disparate treatment are examined under the three-part analysis established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (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. Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts to the complainant to demonstrate by a preponderance of the evidence that the agency's reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Cr. v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-716(1983). Even if we assume that Complainant established a prima facie case of discrimination, her claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. 2020004729 5 With respect to overtime, Complainant’s supervisors explained that overtime depended on customer need and only those employees trained to work the required tasks were asked to work through the overtime roster. They further explained that Complainant’s position was not required for overtime and Complainant lacked the requisite skills to work the overtime that was available. Regarding his reassignment, Complainant’s supervisors explained that Complainant was reassigned to a unit where he would be performing duties more closely aligned with his core document, noting that, prior to the reassignment, Complainant had up to six hours, and sometimes an entire day, with nothing to do that correlated with his position. They also noted that the reassignment did not affect Complainant’s position description, duties, duty station, or salary. Regarding Complainant’s performance evaluation, S1 explained that, while Complainant met the requirements of his position, his overall performance did not merit a higher rating and performance award based upon her assessment. She further noted that Complainant was aware that he missed multiple defects/deficiencies during the inspections that he performed. Although Complainant has alleged discrimination, he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to these claims. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2020004729 6 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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. 2020004729 7 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 March 8, 2021 Date