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

Equal Employment Opportunity Commission

Sep 18, 2019

0120181555 (E.E.O.C. Sep. 18, 2019)

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

Lynette B.,1
Complainant,

v.

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

Appeal No. 0120181555

Hearing No. 40-2016-00528X

Agency No. 4U1L16004F18

DECISION

On April 10, 2018, 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 28, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order finding no discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accounting Clerk,
NF-0525-11 at the Agency’s 628th Force Support Squadron Lodging Office in Joint Base
Charleston, South Carolina. She was responsible for entering data into a computer program that
kept track of the charge and payments for the hotel-style housing that the Agency rented to
travelling military personnel. Complainant's first-level supervisor was the Assistant Lodging
Manager, NF-173-04 (S1) and the Lodging Manager, NF-1173-04, was her second-level
supervisor (S2).

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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Prior to Complainant’s employment, the accounting position was a permanent job. S2 testified
that two of the buildings for which he was responsible were going to be taken out of service for
renovations. Thus, he predicted that there would be a reduction in the housing unit’s revenues and
workload. He began planning for the reduction in work and revenue by not filling jobs that became
vacant. S2 testified that Human Resources (HR) also informed him that a permanent position
would need to be eliminated and that it could not be filled for a year. However, he said that HR
stated he could fill the job as a flexible position, in which case he could simply eliminate the hours,
when the time came. S2 stated that he then converted the accounting position to flexible status
before he knew who would be hired.

When Complainant was hired in 2012, S2 asserted that Complainant was informed that she was a
flex employee and that the position was subject to reduced hours and then abolishment.
Complainant denied knowing this information.

In October 2015, S2 was informed that the building renovations were underway. He eliminated
many housekeeping jobs, which had been permanent positions, but HR found jobs for each
displaced employee. S2 said he told Complainant in September and October 2015, that he was
going to eliminate her hours due to the construction project. He testified that Complainant told him
that she would simply return to school. Complainant denied having told S2 that she would return
to school.

When Complainant initially learned that her hours were going to be reduced to zero, she contacted
the HR Chief by email dated September 16, 2015, in which she stated that she was faced with job
loss due to the upcoming construction of the new lodging facility. However, Complainant also
asserted that S2 had told her the reduction of her hours were due to a Business Based Action or
“BBA” effectuated by HR. When the HR Chief solicited an explanation from S2 about the reduced
hours, she said that S2 admitted the reduction was not the result of the BBA, but rather that
Complainant was resigning to return to school.

Thereafter, S2 offered Complainant a job as a Night Auditor. However, Complainant rejected the
offer. She needed a day position because her husband worked at night and they had young
children. Initially, Complainant was not scheduled to work after October 16, 2015, but she was
retained until January 2016, when S1 informed her that her hours were being reduced to zero.

Although Complainant’s position was eliminated, the Agency still had a need for someone to input
the information on hotel stays. S2 assigned the task to the Training Coordination Manager (TCM),
a White female, because her training duties had decreased due to the reduction in business. TCM
also had prior experience backing up one of Complainant’s predecessors. Moreover, the union
contract allowed S2 to transfer Complainant’s duties to TCM since she was a supervisor. TCM
testified that Complainant’s twenty hour a week job was reduced to less than ten hours due to the
reduction in business; thus, it only took her less than two hours a day to complete the accounting
tasks.

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Complainant testified that her race was a factor in the displacement decision because she suspected
another employee, a White female, was hired to replace her as an Accounting Technician.
Complainant asserted that the alleged employee had previously held the accounting job and
Complainant observed her lurking around the office in a way that was suspicious. The employee,
however, explained that she had applied for a Desk Clerk job, which involved taking reservations
for hotel guests. She said the job was posted online, and when she was hired, she started on the
night shift, but was moved to the day shift when a person left before she started. She said she was
hired in Flexible status in January of 2016, and was converted to Regular status in the summer of
2017. Complainant testified that she heard about the Desk Clerk job but did not apply for it because
it was too late to do so.

On March 25, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of race (African-American) when on January 15, 2016, her scheduled hours
were reduced to zero, in effect, terminating her from her position. After the investigation, the
Agency provided Complainant with a copy of the report of investigation and notice of her right to
request a hearing before an Equal Employment Opportunity Commission Administrative Judge
(AJ). Complainant requested a hearing and the AJ held a hearing on October 5, 2017, and issued
a decision finding no discrimination on January 31, 2018. The AJ determined that Complainant
failed to show that management’s reason – the building renovations—was a pretext for race
discrimination. The AJ observed that even if S2 erred in stating that Complainant’s reduced hours
was the result of the BBA or misspoke when he told the HR Chief that Complainant’s departure
was tied to her decision to return to school, Complainant still failed to prove that her race was a
factor. Moreover, the AJ determined that Complainant’s email clearly indicated that she had been
informed the reduced hours was tied to the building construction. 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.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC
Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

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According to the record, Complainant admitted that as a flex employee, she was not guaranteed
hours. The record also reflects that Complainant’s duties were significantly reduced after her
position was dissolved and that they were absorbed by a supervisor whose own responsibilities
were diminished by the building renovations, and not a newly hired employee. Most significantly,
the accounting position was targeted for elimination before Complainant was hired. Following a
thorough review of the record and the arguments in the briefs, we find that substantial evidence
supports the AJ’s finding of no discrimination.

CONCLUSION

The Commission AFFIRMS the Agency’s decision finding no discrimination.

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.
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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.
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

September 18, 2019
Date