EEOC Appeal 2020001397

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
January B.,1
Complainant,
v.
Barbara M. Barrett,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 2020001397
Hearing No. 410-2019-00450X
Agency No. 9R1M1800846
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 1, 2019, 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 finding no discrimination.
BACKGROUND
Prior to July 3, 2018, Complainant worked as a Supervisory Logistics Management Specialist at
the Agency’s Life Cycle Management Center at Robbins Air Force Base in Georgia. Her first-
level supervisor was S1, Product Support Manager. S2, Branch Chief, was her second-level
supervisor. 	S3, 	Deputy 	Chief, 	Command 	and 	Control, 	Intelligence, 	Surveillance, 	and
Reconnaissance Division was her third-level supervisor. On November 9, 2018, she filed an EEO
complaint alleging discrimination and harassment based on race (Black), color (black), sex
(female), age (59), and reprisal (prior EEO activity), when: on July 3, 2018, S1, S2, and S3
removed her from her position.
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.

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S1 indicated that the decision to remove Complainant from supervision was not made by him, but
he agreed with the decision. The record indicates that S1, upon being asked, informed S3 that he
was not happy with the way Complainant treated her employees, and that he did not think she was
a good supervisor. Specifically, S1 noted that Complainant failed to execute her duties, failed to
meet suspense deadlines for evaluations, and failed to follow directives. Additionally, S1 stated
that Complainant received midterm and annual appraisals that informed her of her deficiencies.
The appraisals also provided recommendations to Complainant on ways to improve her
performance, yet she did not improve.
S2 stated that he lost faith in Complainant’s ability to perform her supervisory duties and to lead
the Supply Chain Management Section. According to S2, he took into consideration her poor
performance, and the attempts to counsel her and to help her to improve her performance, which
were unsuccessful. Therefore, on July 3, 2018, he issued the Memorandum that reassigned
Complainant from a supervisory position to a division level position but that kept her at the same
grade and series level and with the same pay rate. S2 denied Complainant’s assertion that she was
ordered to “pack” her belongings in front of her employees. S2 stated that he told her to mark her
belongings and he would have them moved for her, so that she did not have to move them.
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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ
assigned to the case determined, sua sponte, that the complaint did not warrant a hearing and
notified the parties that she was considering issuing a decision without a hearing. The parties were
given the opportunity to respond, and both complied.
In her opposition, Complainant stated that although she repeatedly met with management to try
and resolve any issues, management refused to work out a solution. She maintained that
management’s goal was to use Memoranda for Records (MFRs) she received, her suspensions, her
lowered appraisal, and her removal from management to harass, discriminate, and to retaliate
against her because of her participation in protected EEO activity.2 Complainant, with respect to
S1’s assertion that she failed to meet suspense dates regarding her employees’ performance
evaluations, stated that she could not input the annual appraisals into the system because S1 was
the next higher level reviewer and approver of the performance plans, and he delayed the
evaluation process by not approving the performance plans.
Over Complainant’s objections, the AJ issued a decision without a hearing on September 26, 2019.
The AJ found that the Agency provided legitimate, nondiscriminatory reasons for the removal of
Complainant from her supervisory position, i.e., S1 stated that Complainant was reassigned due to
her poor performance. Likewise, S2 stated that he issued her a Notice of Reassignment due to his
loss of faith and confidence in her ability to perform her duties. According to the AJ, Complainant,
other than making conclusory allegations, failed to prove that the Agency’s reasons were
pretextual.
2 The MFRs and suspensions were the subject of another EEO complaint filed by Complainant.

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The AJ found that Complainant “seem[ed] to focus on and explain her inability to enter her
employees evaluations. However, [S1] noted that there were other deficiencies. Some of these
appeared to be noted in her mid-year and annual appraisals.” The AJ also found no evidence that
Complainant’s removal was an act of harassment.
The Agency issued a final decision adopting the AJ’s decision. The instant appeal followed.
On appeal, Complainant argues that the AJ erred by granting summary judgment in the Agency’s
favor. She maintains that the AJ’s decision, issued one day after her opposition, was rushed and
listed the wrong agency.3 She also maintains that the record lacks support for the Agency’s
assertion that she was a poor performer, e.g., she notes the lack of statements from her former staff,
the absence of her most recent performance appraisals, and that fact that two employees received
their highest performance appraisals under her supervision and that she nominated one employee
for a performance award which he received.
The Agency, in response, argues that its final order should be affirmed.4
ANALYSIS AND FINDINGS
In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. 	See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions 	and 	legal 	analysis 	– 	including 	on 	the 	ultimate 	fact 	of 	whether 	intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).
3 The AJ issued a revised decision that corrected this error.
4 Although opposed by Complainant, the Commission granted the Agency an extension of time to
file its brief.

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AJ’s Issuance of a Decision Without a Hearing
We must determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S.
317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material”
fact has the potential to affect the outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We have carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute. For reasons that will
be discussed below, we find that the AJ correctly determined that there were no genuine issues of
material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision
without a hearing was appropriate.
To prevail in a disparate treatment claim, Complainant must satisfy the 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 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, 441 U.S. at 804
n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas 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 a pretext for discrimination. 	Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
To meet her ultimate burden of proving that the Agency’s actions were discriminatory,
Complainant 	needs 	to 	demonstrate 	such 	“weaknesses, 	implausibility, 	inconsistencies,
incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of
Labor, EEOC Appeal No. 0120160132 (Sep. 14, 2017).

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Assuming, arguendo, Complainant established a prima facie case of discrimination based on her
race, color, sex, age, or previous EEO activity, like the AJ, we find that the Agency articulated,
legitimate, nondiscriminatory reasons for its actions as were set forth in detail above. We also find
no evidence of pretext. Given the totality of the record, we find that Complainant has simply not
provided any evidence that raises a genuine issue of material fact that her protected bases played
any role with respect to her removal from her supervisory role. We note that, in addressing an
Administrative Judge’s issuance of a decision without a hearing, a complainant’s opposition must
consist of more than mere unsupported allegations or denials and must be supported by affidavits
or other competent evidence setting forth specific facts showing that there is a genuine issue for a
hearing. See Celotex, 477 U.S. at 324. Complainant acknowledged that she repeatedly met with
management to try and resolve issues, although she maintained that management refused to work
out a solution. She further acknowledged receiving MFRs, suspensions, and a lowered appraisal.
Complainant did not provide any evidence of a similarly situated employee outside of her protected
categories who was treated differently, i.e., not removed from supervision after being suspended
twice and receiving similar MFRs.
To the extent that Complainant raised a hostile work environment claim, we find that under the
standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim
of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 	A finding of a hostile work environment is
precluded by our determination that Complainant failed to establish that any of the actions taken
by the Agency were motivated by discriminatory animus. 	See Oakley v. United States Postal
Service, EEOC Appeal No. 01982923 (Sep. 21, 2000).
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final order, because the Administrative Judge’s issuance of a decision without a hearing
was appropriate and a preponderance of the record evidence 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
September 21, 2020
Date