Complainant,v.Eric Fanning, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 20, 2014

0120121611 (E.E.O.C. Mar. 20, 2014)

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

,
Complainant,

v.

Eric Fanning,
Acting Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120121611

Agency No. 9Z0J11005

DECISION
On February 17, 2012, Complainant filed an appeal from the Agency’s January 13, 2012, 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a part-time
Acquisition Program Manager, GS-1101-12, Air Force Program Executive Office, Enterprise
Information Service, Enterprise Service Division, (AFPEO/EIS), at Maxwell-Gunter Air Force
Base in Alabama. On March 31, 2011, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of race (African-American) when he was
terminated from the Acquisition Program Manager position.

The Agency accepted the complaint and conducted an investigation. 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 EEOC Administrative Judge (AJ).
Complainant timely requested a hearing but subsequently withdrew his request. Consequently,
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 as
alleged. From that decision, Complainant brings the instant appeal.

0120121611

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ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). 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 Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
In this case, the Agency explained that Complaint was removed from his position because the
function he was hired to perform was no longer required. Complainant was hired to serve as a
mentor for the several Acquisition Program Manager interns the Agency planned to employ.
Five months after Complainant was hired, the Agency had only one Acquisition Program
Manager intern on staff. In the course of an Agency-wide effort to realize $100 billion in
savings, the Agency determined that it was unnecessary to have a mentor for that single intern.
Accordingly, Complainant’s position was eliminated. Investigative File (IF) at 80-81. This is a
legitimate, nondiscriminatory reason for the Agency’s action.

Complainant disputes that the need for his services as a mentor was reduced because there
were fewer interns on staff than had been anticipated. He contends that there were six interns
assigned to “other functional areas” whom he was assigned to mentor. Complainant’s Appeal
Statement at 4; IF at 73-74. The evidence does not support Complainant’s position. The
testimony of the relevant management officials is that Complainant was not responsible for
mentoring interns in other functional areas. IF at 81. Complainant also takes issue with the
Agency’s characterization of him as an employee “at will.” He argues that he was improperly
regarded as a probationary employee, subject to immediate removal. Complainant’s Appeal
Statement at 2. This argument does not relate to the question of whether the Agency’s
explanation for its actions is a pretext for discrimination. Rather, it raises issues of
Complainant’s rights under the Civil Service rules which are not within the Commission’s
jurisdiction.

CONCLUSION
For the foregoing reasons, we AFFIRM the Agency’s final decision.

0120121611

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
0120121611

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and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 20, 2014