EEOC Appeal 2020000245

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felton Z.,1
Complainant,
v.
Deborah F. Rutter,
President,
Kennedy Center,
Agency.
Appeal No. 2020000245
Agency No. 3-18
DECISION
On September 27, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 27, 2019 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.
BACKGROUND
During the relevant period, Complainant worked as a Contract Specialist, GS-1102-11, at the
Agency’s Facilities Management and Operations Division, Contracting Office in Washington D.C.
On January 21, 2019, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on race (African-American) and in reprisal for prior
protected activity (participated in informal counseling process in September 2017) when:
1. 	in July 2018, he became aware that, based on discriminatory practices, he did not
receive the desk audit he had requested prior to April 2018;
2. 	on January 18, 2018, he received a biased mid-year evaluation which resulted in a delay
in his receiving a GS-11; and
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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3. 	in September 2018, he became aware that the former Team Lead and Acting Director
was a GS-13 without being qualified, and the same exception should have been made
for him.
After the investigation of the formal complaint, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge. 	In accordance with Complainant’s request, the Agency issued a final
decision on August 27, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed. Complainant did not submit a timely brief on appeal.
ANAYLSIS 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.
Complainant has worked as a Contractor Specialist at the Agency’s Facilities Management and
Operations Division, Contracting Office in Washington D.C. He began working at the Center in
December 2014 and has been in his current position since May 2017.

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Regarding claim 1, Complainant asserted that in July 2018, he became aware that, based on
discriminatory practices, he did not receive the desk audit he requested prior to April 2018.
The Chief Financial Officer (Caucasian) was Complainant’s second-level supervisor during the
relative period. She acknowledged that on November 6, 2017, she received Complainant’s email
requesting a desk audit. 	The Chief Financial Officer stated that after discussing Complainant’s
desk audit with the former Director of Contracting, she decided that a desk audit was not necessary,
so they did not conduct one.2
Complainant asserted that he performed work that his GS-9 co-workers did not perform as
justification for the requested audit. 	However, the Chief Financial Officer stated that because
Complainant worked at the Center longer than his co-workers, Complainant was using his skill set
to train his co-workers and “it was an opportunity for growth for [Complainant] and I don’t know
why he would object to helping new colleagues learn the ropes.”
Regarding the portion of claim 2 addressing a mid-year evaluation, Complainant alleged that on
January 18, 2018, he received a biased mid-year evaluation which resulted in a delay in his
receiving a GS-11.
The Chief Financial Officer stated at that time she did not approve or sign off on Complainant’s
mid-year evaluation, and that Complainant never discussed his mid-year evaluation with her. She
maintained that the former Director of Contracting was the party who issued Complainant’s mid-
year evaluation. She noted that Complainant raised his concerns with the Senior Human Resources
(HR) Specialist. Specifically, the Chief Financial Officer noted that Complainant requested that
the mid-year evaluation be removed from his file and she believed that the evaluation was
removed.
The current Director of Contracting (African-American) stated that during the relevant period she
was Complainant’s supervisor. 	The supervisor maintained that she had no involvement in the
issuing of Complainant’s mid-year evaluation, which was done by her predecessor. She stated that
following the August 16, 2018 meeting with Complainant to discuss the complaint “a decision was
made to remove the write-up from [Complainant’s] mid-year. I informed [Complainant] of this
decision on August 22, 2018.”
Regarding the portion of claim 2 relating to a promotion delay, the Chief Financial Officer
explained that on December 1, 2014, Complainant was hired as a GS-1106-Grade 5, Step 4. On
May 6, 2016, Complainant was moved from a GS-1106, Grade 6, Step 4 to a GS 1102, Grade 7,
Step 3. She further noted that on May 28, 2017, Complainant was promoted to a GS-1102-9 and
he was promoted to a GS-1102-11 on May 28, 2018.
2 The record reflects that the former Director of Contracting left the Agency in January 2018.

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The Chief Financial Officer stated that there was no delay in Complainant’s promotion from a GS-
09 to a GS-11. Specifically, the Chief Financial Officer stated that Complainant received his GS-
11 promotion after being in his grade 9 position for 12-months “which I believe is a Federal
requirement, that is, an employee must serve 52-weeks in one grade level before [he or she is]
eligible to be considered for promotion to the next higher-grade level.
Regarding claim 3, Complainant alleged that on in September 2018, he became aware that the
former Team Lead and Acting Director was a GS-13 without being qualified and the same
exception should have been made for him.
The Chief Financial Officer acknowledged that it had been a mistake for the former Director to
hire the Supervisory Contract Specialist, also Complainant’s former supervisor, to a GS-13
position. She asserted that she was not involved in the promotion process. The Chief Financial
Officer further stated that the former Supervisory Contract Specialist left the Agency in February
2019, because it was determined that he did not have the academic requirements for the GS-13
position, and therefore, he was unqualified for the GS-13 position. The record reflects the GS-13
position requires a degree and the former Supervisory Contract Specialist did not have a degree.
Moreover, the Chief Financial Officer explained that there was no opportunity for Complainant to
be placed in a GS-13 position “under the same exception as the former Supervisory Contract
Specialist because there is no such exception. As I stated, [former Supervisory Contract Specialist]
being placed in the GS-13 position was a mistake.”
In 	summary, 	as 	detailed 	above, 	the 	responsible 	Agency 	official 	articulated 	legitimate,
nondiscriminatory reasons for the disputed actions, which Complainant failed to prove, by a
preponderance of the evidence, were a pretext designed to mask race discrimination and retaliation
for his prior EEO activity.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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.

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Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of
the request. 	Any supporting documentation must be submitted together with the 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 23, 2020
Date