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

Equal Employment Opportunity Commission

Sep 19, 2013

0120113774 (E.E.O.C. Sep. 19, 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. 0120113774

Hearing Nos. 410-2010-00346X, 410-2010-00297X, 410-2011-00226X

Agency Nos. 9R1M09233, 9R1M10008, 9R1M10187

DECISION

Complainant filed an appeal from the Agency’s final order dated August 1, 2011, finding no
discrimination with regard to her complaints. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

The record indicates that Complainant filed three complaints which were subsequently
consolidated for processing by the Agency.

In Agency No. 9R1M09233, Complainant alleged discrimination based on race (Black), sex
(female), age (over 40), and in reprisal for prior EEO activity when:

(1) On July 28, 2009, she was notified that an identified employee was noncompetitively
selected to a GS-12 position as Wing Information Assurance Manager Information
Technology Specialist denying her the opportunity to compete for that position.

In Agency No. 9R1M10008, Complainant alleged discrimination in reprisal for prior EEO
activity when:

(2) On September 28, 2009, her request for a position audit was agreed to, but on
September 29, 2009, she was informed that her request was denied by her supervisor;
and
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(3) On October 1, 2009, she was informed that her request for an audit would be reviewed
again after she provided additional information and the supervisor deemed it necessary.

In Agency No. 9R1M10187, Complainant alleged discrimination based on race (Black), sex
(female), age (over 40), and in reprisal for prior EEO activity when:

(4) On June 30, 2010, she received a composite score of 74 on her 2009-2010 civilian
rating of record from her supervisor and was marked down in the following elements:
element 1: work effort; element 2: adaptability to work; element 3: problem solving;
element 5: communication; element 6: work productivity; and element 7; self-
sufficiency;
(5) On June 1, 2010, she was denied the opportunity to review her 2009-2010 civilian
rating of record prior to being placed in her official career brief without her knowledge
as well as the knowledge of her supervisor and the rest of upper management; and
(6) On January 1, 2010, the supervisor stated that the only way she could receive an 81 on
her civilian rating of record was for her to be proactive without providing his definition
of what proactive meant.

At the conclusion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On July 6, 2011, the AJ, after a hearing, issued a decision finding
no discrimination, which was implemented by the Agency in its final order.

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, § VI.B. (November 9, 1999). We note
that Complainant does not challenge the definition of the issues on appeal. In this case,
assuming arguendo that Complainant established a prima facie case of discrimination, the AJ
determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged
incidents. During the relevant time period at issue, Complainant was employed with the
Agency as an Information Technology (IT) Specialist at the Agency’s Warner Robins Air
Force Base.

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With regard to claim (1), the AJ noted that prior to the alleged incident, Complainant worked
alongside her former GS-12 IT Specialist (FS) who performed functions that were similar to
those of Complainant. The AJ also noted that there was a considerable degree of overlap
between their functions. The AJ stated that the FS was previously one of a series of military
officers whose positions in the area of information security were eliminated. Thus, the Agency
created a generic position for them in order to provide them with civilian employment. The
Agency assigned the position to the level of GS-12 in order to provide the military officers
with civilian employment equivalent to their prior military rank. At the time the FS left his
employment with the Agency to take a position with the Social Security Administration,
Complainant’s organization was subjected to eliminating 15 jobs which were funded by the
Depot Maintenance Activity Group (DMAG). An identified individual’s job was identified as
one of those positions to be eliminated. Instead of terminating the individual, the Agency
decided to transfer that individual from his GS-12, IT Specialist position to fill the position that
was vacated by the FS, i.e., a GS-12 IT Specialist position. The Agency indicated that of
those 15 jobs being eliminated, eight, including the transfer at issue, were noncompetitively
reassigned and two were absorbed through retirements or promotions outside the organization.
The AJ stated that the Agency clearly filled the vacant position by a transfer pursuant to
personnel policy and a stated need for budget cuts, and not to deprive Complainant of a
promotional opportunity.

With regard to claims (2) and (3), Complainant’s supervisor stated that he was asked to certify
that Complainant was performing duties outside her job description. The supervisor indicated
that he denied the requested position audit because he determined Complainant was not
working outside her core duties and was not given any additional duties at a higher grade level
to perform. Furthermore, although the personnel specialist asked Complainant to fill out some
documentation in connection with the request for an upgrade, she failed to do so. Based on the
foregoing, the Agency stated that Complainant’s position audit was not conducted.

With regard to claim (4), the AJ stated that Complainant previously received an 81 rating, a
perfect score, from her former supervisor. But, indicated the AJ, Complainant received a 74
on June 30, 2010, from the current supervisor because her ratings had been reduced by one
point in most of the sub-elements that went into the performance rating. Complainant’s
supervisor indicated that he was advised by his management that Complainant appeared to be
spending too much time talking in the hallway with a personal friend and not working at her
desk. The AJ indicated that the supervisor testified credibly that he reserved the very highest
rating for the employees that did something above and beyond the normal call of duty, and he
testified with specificity as to what it was the people who got the perfect rating had done to
earn that rating, and his explanation made perfect sense.

With regard to claim (5), the AJ stated that the Agency employees, including Complainant,
were not permitted to give input into the review during the relevant time period at issue.
Specifically, the Agency stated that the appraisals of its employees, including Complainant,
were late coming from top management at the relevant time; thus, the first line supervisors,
including Complainant’s supervisor, did not have enough time to review the appraisals with
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their employees prior to the appraisals being placed in their career briefs. The Agency,
undisputed by Complainant, stated that the incident at issue affected all employees.

With regard to claim (6), the AJ indicated that the supervisor’s definition of proactive was as
nebulous as Complainant seemed to suggest. Specifically, the supervisor indicated that during
his section staff meetings, his employees, including Complainant, were previously informed
that they must be proactive in their duties by identifying and correcting problems in their
programs under their authority in order to excel.

After a review of the record, we find that management articulated legitimate,
nondiscriminatory reasons for the alleged actions. We also find that Complainant failed to
show that she was treated less favorably than a similarly situated employee under similar
circumstances. The AJ stated and we agree that Complainant failed to show that the Agency’s
proffered reasons were pretextual. Upon review, we find that the AJ’s factual findings of no
discriminatory intent are supported by substantial evidence in the record.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order finding no discrimination is AFFIRMED because the AJ’s
decision is supported by substantial evidence.

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.
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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

(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 19, 2013
Date