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

Equal Employment Opportunity Commission

Sep 5, 2013

0120113571 (E.E.O.C. Sep. 5, 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. 0120113571

Hearing No. 451-2011-00044X

Agency No. 9-P0J10012

DECISION

Complainant filed an appeal from the Agency’s June 9, 2011 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.
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
Order.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Child
Development Program Assistant at the Agency’s Randolph Air Force Base facility in Texas.
On April 22, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of national origin (Filipino) and age (62) when:

Complainant was not promoted from flex to regular employee and assigned a
Child Development Center (CDC) room.

At the conclusion of 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 EEOC
Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on
April 11, 2011. The AJ issued her decision on April 29, 2011.

In her Decision, the AJ found that Complainant was a flexible or “flex” employee along with
other Child Development Program Assistants (CDPA) who were scheduled each week to work
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zero to forty hours of work. The AJ found that E1 was an African American male employee,
28 years of age and that E2 was a female Panamanian employee, 42 years of age. The AJ
found that E1 and E2 both received a numerical score of 22 on their 2009 performance
evaluations1

, while Complainant received a score of 20 in the same appraisal period. The AJ
further found that Complainant had more years of experience than either E1 or E2. The AJ
noted that Complainant received more hours of work in 2009, as a flex employee than did E1
or E2.
The AJ found that both E1 and E2 were converted from flex to full-time status while
Complainant was not converted to full-time status. The AJ found that the Agency’s articulated
decision was based upon the needs of the children and their parents. The AJ considered the
statements of S1 when she stated that E1 and E2 were the best selections to meet the needs of
the children in the classrooms to which they were then assigned. The AJ considered the
statements of S2 who observed Complainant with children and stated that Complainant was
more custodial rather than creative or interactive with the children and that E1 and E2 were
more upbeat around the children. The AJ considered the statements of other Agency
employees who had worked longer with Complainant than with E1 or E2. Those witnesses,
the AJ noted, thought Complainant worked better than E1 or E2 with the children and parents.
The AJ found the evidence of still other Agency officials was consistent with S1’s belief that
E1 and E2 were better suited than Complainant to the children (older children and toddlers) in
the classrooms to which they were assigned. While both Complainant and E1 had
undergraduate degrees in child development and Complainant had more years of experience
than either E1 or E2, the AJ found Complainant did not demonstrate show that her
qualifications, together with her observed skills with children, were plainly superior to those
possessed by E1 and E2. Accordingly, the AJ found that Complainant did not show that she
was subjected to national origin or age discrimination.

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.

1 The AJ’s Decision notes the appraisal period as being from September 2008 through October
1, 2009.
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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. (November 9, 1999).

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). Complainant must initially establish a prima facie case by demonstrating
that he or she 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). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden 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). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, we find substantial evidence supports the AJ’s Decision. We find the
undisputed evidence shows that the conversion of flex employees to full-time status was not an
automatic event that occurred whenever a flex employee worked more than a set number of
hours in a given time period, nor after a flex employee had been employed by the Agency for a
specific period of time. Rather, we find the undisputed evidence shows that flex employees
were assigned to classrooms and scheduled as needed. We find, as did the AJ, that
Complainant was qualified for her position and that she was a good worker. We find no
dispute that E1 and E2 were also qualified for the CDPA position and that Agency officials
observed their skills in the classroom, as well as Complainant’s classroom interactions. We
find substantial evidence supports the Agency’s position that E1 and E2 were a better fit for the
classrooms to which they were assigned and that they were converted to full-time as a result of
vacancies that occurred in those classrooms.

Upon review, we find that complainant failed to show that her qualifications for conversion to
full-time status were plainly superior to those possessed by E1 and E2 when the Agency
changed their employment status from flexible to permanent, full-time. We find Complainant
failed to establish that more likely than not the Agency's action was motivated by
discrimination. See Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995).

CONCLUSION

Based on a thorough review of the record we AFFIRM the Agency’s Final Order finding no
discrimination.

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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.

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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
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

September 5, 2013
Date