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

Equal Employment Opportunity Commission

Apr 17, 2019

2019001228 (E.E.O.C. Apr. 17, 2019)

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

Kendall C.,1
Complainant,

v.

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

Appeal No. 2019001228

Agency No. 6R0M15001

DECISION

On December 7, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 26, 2018 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as an Environmental Health Technician, GS-
0698-09, at the Agency’s 94 Mission Support Group, Surgeon General Public Health facility in
Dobbins Air Reserve Base, Georgia.2

On October 31, 2014, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him on the bases of race (Native American/Latino), national
origin (Hispanic), age (over 40), and in reprisal for prior EEO activity when, beginning on or
about May 27, 2014 through August 27, 2014, he was put on a Performance Improvement Plan.

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.

2 In November 2014, Complainant retired from Agency employment.
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After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing. Complainant, however,
subsequently withdrew the hearing request. The Agency issued the instant final decision on
September 26, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below. The Chief, Bioenvironmental Engineering (Caucasian, American
European, over 40, unknown prior protected activity) stated that during the relevant period she
was Complainant’s first level supervisor. The Chief acknowledged that on May 28, 2014, she
placed Complainant on PIP for unacceptable work performance.

The Chief explained that prior to placing Complainant on a PIP following his receipt of an
unacceptable rating on his performance appraisal. She said that prior to this she had had
numerous discussions with him concerning his work performance deficiencies, as well as
disciplinary actions including a written counseling and a 5-day suspension.
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Further, the Chief stated that she received “significant guidance” concerning Complainant’s
unacceptable performance from Human Resources and the Employee and Labor Relations
Officer. The Chief stated that she followed the Employee and Labor Relations Officer’s
guidance in placing Complainant on a PIP.

Complainant asserted that the Chief placed him on the PIP to humiliate him and to get him fired.
The Chief stated, however, that she placed Complainant on the PIP to improve his work
performance. The Chief also stated, “I did everything in my power to rehabilitate and improve
[Complainant’s] performance, including sending him to a 13-week school. Establishing a PIP
was the last option. His work performance and lack of production left me with no choice but to
institute a PIP. After the PIP was initiated, he still was not completing tasks by the due date and
his performance did not improve…other workers were still having to complete most of his
responsibilities.”

The Employee and Labor Relations Officer (Caucasian, American, over 40, no prior protected
activity) stated that he and the Chief discussed Complainant’s unacceptable work performance.
The Employee and Labor Relations Officer (ELR Officer) stated that he noted Complainant’s
Civilian Rating of Record for the period of April 1, 2013 through March 31, 2014, reflected an
overall rating of “Unacceptable.” The ELR Officer noted that Complainant “failed two out of
three critical elements of his Air Force Core Personnel Document and he was unable to
satisfactorily accomplish most of the requirements of his job.”

The ELR Officer stated that after the Chief provided him with “specific performance-based
examples as to why [Complainant] should be placed on the Performance Plan, I concurred with
her decision.” The ELR Officer stated that Complainant “was given ample opportunity to
improve. However, he did not. The Performance Improvement Plan was an opportunity for
[Complainant] to improve his job performance to the acceptable level as stated on his Civilian
Rating of Record.”

After careful consideration of the record, we conclude that neither during the investigation nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination.

Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of
the evidence of record does not establish that discrimination occurred.

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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.
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 (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

April 17, 2019
Date