Complainant,v.Michael B. Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120114177 (E.E.O.C. Jun. 14, 2013)

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

,
Complainant,

v.

Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120114177

Agency No. 8B1M10001

DECISION

On September 12, 2011, Complainant filed an appeal from the Agency’s August 9, 2011 final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 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 an Aerospace
Engineer,1

GS-0861-12, in the Program Management and Integration, 649th Test Systems
Squadron, 704th Test Systems Group, at Arnold Air Force Base, Tennessee. On February 16,
2010, Complainant filed an EEO complaint (which was amended on November 19, 2010)
alleging that the Agency discriminated against him on the bases of age (50) and in reprisal for
prior protected EEO activity when:

1 The primary purpose of Complainant's position was to serve as a project manager of applied
technology and analysis projects within the Test Mission Area and to serve as a functional
specialist for evaluating the Test Support Contractor's performance in the applied technology
area.
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1. on September 10, 2009, his immediate supervisor, the Director, 649th Test Systems
Squadron, (S1) transferred his job responsibilities to a younger employee2
2. on July 15, 2009, S1 counseled him about interacting with a contracting officer;
;
3. on July 28, 2009, the Technology Program Manager (PM) sent him a harassing e-mail;
4. on September 10, 2009, S1 referred to him as a "one trick pony," which he took to
mean he was old and could not learn new things;
5. on September 10, 2009, S1 lowered his performance element rankings during a mid-
term performance review;
6. on September 10, 2009, S1 shared his personal performance information prior to his
performance review;
7. on November 17, 2009, S1 placed an equal opportunity meeting concerning
Complainant on his calendar and informed the staff of such meeting;
8. between September 23, 2009 and March 16, 2010, S1 failed to respond to e-mails and
calls related to his efforts to obtain new jobs;
9. on February 23, 2010, S1 released the new 649th Personnel Organizational Chart
showing Complainant in the 649th Maintenance Group (MXG) instead of the Small
Business Innovation Research (SBIR) Program Manager's position;
10. on March 8, 2010, S1 excluded him from a meeting with the SBIR Program Manager
(PM2); and
11. on March 24, 2010, S1 sent him an e-mail accusing him of failing to coordinate SBIR
calls with Technical Directors.

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). 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 as alleged.

ANALYSIS AND FINDINGS

Claim 1 – Work Assignments

In its final decision, the Agency noted that S1 denied that he discriminated against Complainant
based on age, or retaliated against him on the basis of his protected EEO activity. In addition,
the Agency noted the following. S1 testified that after speaking with various employees in
March 2009, he determined there was a significant likelihood that Complainant would relocate
to Wright-Patterson AFB, Ohio in order to be near his ailing mother, for whom he was the
primary caregiver. Given Complainant's role as SBIR Program Manager, S1 stated that he felt

2 Initially, the Agency dismissed the Complainant's claim of age discrimination with regard to
the transfer of his job responsibilities pursuant to 29 C.F.R. 1614.107(a)(2) for untimely
contact with an EEO counselor. However, after further clarification, the Agency accepted this
claim.
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it would be in the best interest of the organization to prepare for a hand-over of the program,
but there were indications that the documentation of the process was not sufficient to support
an immediate hand-over. Therefore, in order to ensure that the hand-over would be smooth at
whatever point it needed to happen, S1 assigned PM to work with Complainant to document
the SBIR processes, which led to PM taking on a portion of the SBIR program management to
increase PM’s understanding of the processes he was documenting. S1 also declared that at the
same time, a need arose to begin development of a new technology program to support the
Maintenance Group at AEDC, and with PM assisting Complainant with the SBIR Program, S1
asked Complainant to begin the process of building that program, based on Complainant's
recent experience working with them on multiple SBIR projects.

The Agency noted that Complainant felt that his age was a factor partly because of S1's "one
trick pony" remark made during his mid-term performance review, which Complainant viewed
as a reference to older people, and thought meant that he was old and could do only one thing.
However, the Agency notes that the remark is not age-related on its face. Moreover, S1
affirmed that the comment was directed toward Complainant’s failure to broaden his
experience and knowledge into the development of the new technology program. In addition,
the Agency noted that during the relevant time-frame, an older individual (C1) (60 years old)
was hired as an Aerospace Engineer, GS-0861-12.

Complainant also asserted that S1's stated reasons for assigning PM some of the SBIR Program
Manager's duties "made no sense" because the SBIR processes were already well documented.
However, the Agency presented evidence that the Agency encouraged and expected the
supplementation of any standard documentation of the SBIR processes.

Complainant also argued that S1 exhibited "double standards" favoring "younger folks" when
he: (a) ignored a Chief Technologist’s (age 66) (C2) instruction for S1 to "work with"
Complainant and an Advanced Missile Lead (age 59) (C4) on a particular project, and asked
PM about it instead; (b) directed PM rather than Complainant, to travel to attend the SBIR
transition meeting in June or July of 2009; (c) rebuked and counseled Complainant for sending
an "unprofessional and unacceptable" e-mail to a contracting officer on July 15, 2009, but took
no action to correct PM for sending "harassing" e-mails to and about Complainant on July 28,
2009, and October 15, 2009; and (d) "accused" Complainant of not coordinating the SBIR call
with the Technical Advisors, when PM was the one who sent out the call in January 2010.

The Agency notes that the record contains nothing further regarding (a). With respect to (b),
Complainant indicated that he and PM both attended the SBIR program managers meeting in
August 2009, which the Agency argues weakens Complainant's position. Regarding (c), the
Agency asserts that S1 maintained that he did not see the email that PM sent on July 28, 2009.
In addition, S1 and Complainant’s third-level supervisor (S3) assert that Complainant did not
inform them of any unwelcome conduct prior to initiating the instant complaint. Moreover, by
the time it was brought to S3’s attention, PM had been deployed overseas. Regarding (d),
Complainant indicated that PM was "gone" at the time, which is consistent with PM’s
statement that he was out of the office at military training. Thus, the Agency asserts that the
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fact that Complainant was the only recipient of S1's e-mail about the SBIR call is explained,
and does not support Complainant's claim that he was blamed for his younger colleague's
error.

Complainant also asserted that “[a]lmost all of the younger folks (with technology for a few
years) were promoted, whereas almost none of the older folks were promoted." The Agency
noted that Complainant did not identify any particular younger individuals who were promoted,
or any particular older individuals who were not promoted. However, the record indicates that
C3 was promoted in late November 2009. Complainant did not indicate that he applied for any
promotions to positions within his work unit, although three GS-0861-13 vacancies existed,
and at least one selection was made during the relevant time-frame. An applicant (C5) (age
63) who was significantly older than Complainant was selected for an Aerospace Engineer,
GS-0861-13 position.

Complainant asserted, and provided evidence, that he applied and was interviewed for various
GS-12 and GS-13 positions at various locations during the relevant timeframe. However, S1
was not involved in the selection process for any of those positions, and he denied that he was
contacted by anyone who was considering Complainant for any positions. Nonetheless,
Complainant believed that S1 had sabotaged his chances to get a position elsewhere because he
told people connected with the SBIR Program that he had to care for a family member.
Although S1 did contact individuals at Wright-Patterson Air Force Base (AFB) to discuss
possible reassignments for Complainant, the Agency concluded that there is no indication that
his actions were motivated by Complainant's age or protected EEO activity.

Accordingly, the Agency concluded that Complainant failed to establish by a preponderance of
the evidence that the Agency’s articulated legitimate, non-discriminatory/retaliatory
explanations for its employment actions pertaining to Claim 1 were a pretext or motivated by
discriminatory or retaliatory animus.

Claim 5 - Mid-Term Performance Review

With respect to Claim 5, the Agency noted the following. S1 denied that he discriminated
against Complainant based on age, or retaliated against him on the basis of his protected EEO
activity. The Agency also asserts that S1 proffered legitimate, nondiscriminatory reasons for
the midterm performance review (i.e., the complainant needed to make some progress in the
area of communications). In his attempt to establish pretext and discriminatory/retaliatory
animus, Complainant raises the same arguments that have been set forth herein-above
pertaining to Claim 1. In addition to those arguments, Complainant also asserted that he had
received more favorable progress reviews from his previous supervisors, and provided an
example of one from four years earlier which indicated the previous supervisor's opinion that
Complainant needed little to no improvement in most aspects of his job performance, but
needed to "[k]eep working hard on working with folks," and "[k]eep improving [his] oral
skills."

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The Agency notes that there is no direct correlation between the markings and comments on a
mid-term progress review and an employee's “promotion appraisal factor” ratings on an annual
appraisal. However, the Agency further notes that Complainant had never received
“promotion appraisal factor” ratings totaling more than 76 out of a possible score of 81 and
was never rated higher than “Above Fully Successful” for “promotion appraisal factor” (5)
(i.e., Communication). The Agency asserts that these ratings, and the previous supervisor's
comments, while less direct, support S1’s assertion that Complainant's communication skills
could be improved.

Accordingly, the Agency concluded that Complainant failed to present evidence to establish a
finding that management's articulated legitimate, nondiscriminatory reason for the mid-term
evaluation was unworthy of belief, or a pretext for unlawful age discrimination or retaliation.

Claims 2-4 and 6-11 – Harassment

The Agency concluded that Complainant failed to present corroborating evidence to establish
that the incidents cited in Claims 6-8 and 10 occurred. The Agency also concluded that the
preponderance of the evidence established that the incident in Claim 11 occurred but not
exactly the way Complainant described it. In addition, the Agency concluded that the incidents
cited in Claims 1-5 and 9 also occurred.

Regarding Claim 1, the Agency noted that Complainant regarded the changes in his work
assignment as a demotion, because instead of being the sole manager of the 8.5 million dollar a
year SBIR Program, he was co-managing it with PM, and was expected to assume PM’s
position as the Flight Technology Program Manager (i.e., a program with a much smaller
budget). Regarding Claim 2, the Agency noted that Complainant regarded S1's actions as
unwarranted and hostile. In addition, Complainant felt that it assumed the worst about him.
Regarding Claim 3, Complainant regarded PM's e-mail as offensive and his supervisors agreed
that it was inappropriate.3

Regarding Claim 4, the Agency noted that Complainant regarded
the "one trick pony" remark as disrespectful. Regarding Claim 5, Complainant described his
midterm performance review as meritless and belittling. With regard to Claim 9, the Agency
noted that Complainant viewed his proposed new work assignment as a major demotion due to
the project's small budget. Regarding Claim 11, the Agency noted that Complainant
considered S1's e-mail as a false accusation. Accordingly, the Agency concluded that
Complainant established that he was subjected to unwelcome conduct.
The Agency also concluded that Complainant’s pretext arguments (as set forth above) failed to
establish discriminatory or retaliatory animus for incidents pertaining to Claims 1 -5 and 11.

3 The record indicates that Complainant was pictured in the Arnold AFB newspaper, in an
article about the Complainant helping customers. In the email sent by PM to numerous
Agency employees, he states ““the caption should read “[Complainant] annoying customers.”
PM asserted that the comment was intended to be a joke. According to PM, the email was not
intended to harass, nor was it motivated by Complainant’s age or protected EEO activity.
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With respect to the incident pertaining to Claim 9, the Agency noted that Complainant believed
his age was a factor because two unidentified ''younger'' individuals were hired and assigned
to programs that S1 previously intended to assign to Complainant. However, the Agency
noted Complainant continued to perform SBIR program manager duties until he relocated.
Accordingly, the Agency concluded that Complainant did not establish a prima facie case of
discrimination or retaliation since he failed to establish that similarly situated individuals
outside his protected classes were treated in a more favorable manner.

The Agency also concluded that when viewing the totality of the evidence of harassment such
evidence does not support the finding of an unreasonable hostile work environment.
Specifically, the Agency concluded that while a reasonable person in Complainant's situation
might find the various actions unpleasant or disappointing, such a person would not likely view
the work environment as objectively hostile, patently offensive, or abusive. Moreover, the
Agency also concluded that the incidents pertaining to Claims 1, 2, 4, 5, 9, and 11 appear to
have been reasonable actions taken by S1 in the course of discharging his supervisory
responsibilities (e.g., assigning work, ensuring that program responsibilities could be
completed, counseling regarding performance and conduct concerns, advisement on career
progression and ensuring work was accomplished as desired).

Accordingly, the Agency concluded that with regard to the work assignments and mid-term
performance review, the agency articulated legitimate, nondiscriminatory reasons for the
alleged actions which were not proven, by a preponderance of the evidence, to be a pretext for
discrimination or retaliation. In addition, the Agency concluded that Complainant failed to
establish that he was subjected to any action on the basis of either age or prior EEO activity.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find the preponderance of the evidence supports the Agency’s
analysis and findings. In addition, contrary to Complainant’s assertions on appeal, we find the
investigative record to be adequate and complete. Moreover, we agree with the Agency with
respect to its view that Complainant failed to take advantage of his option to supplement the
record by requesting a hearing. Lastly, we note that Complainant fails to proffer facts in his
appellate statement which support a finding of discrimination or harassment. Accordingly, we
AFFIRM the final agency decision.

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:

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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
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
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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

June 14, 2013
Date