[Redacted], Maren K., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022005104 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maren K.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022005104 Agency No. 8Y1G2200469 DISMISSAL Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 25, 2022, dismissing a portion of her unlawful 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. Complainant worked as a General Engineer, GS-13 at the Agency’s Kirtland Airforce Base in Albuquerque, New Mexico. On July 20, 2022, she filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, sex, disability, and reprisal for prior protected EEO activity when: 2 a) On March 28, 2022, Complainant was notified that she would be put in an AWOL status when she asked for leave 3 hours before the workday. 2 b) Complainant’s pay from March 28, 2022 - June 2022 was withheld for over 4 weeks and substituted for paid leave. 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. 2022005104 2 2 c) On March 28, 2022, Complainant was given a Proposed 5-Day Suspension for reporting her supervisor to HR and Security. 2 d) Complainant was denied leave even though her FMLA request had been approved on April 11, 2022. 2 e) On April 29, 2022, Complainant’s appraisal inputs were deleted, and she was rated unsuccessful in MyBiz by the Director. 2 f) On April 29, 2022, Complainant’s appraisal inputs were deleted, and she was rated unsuccessful in MyBiz by the Colonel. 2 g) On May 3, 2022, Complainant’s reasonable accommodation request was denied. 2 h) Complainant’s computer was taken because she sent an “alleged” Top Secret email. 2 i) On May 18, 2022, Complainant received a Cease and Desist Order after sending her Social Security and OPM FERS requirement that required the supervisor and CPS’s section to be filled out. 2 j) On June 9, 2022, Complainant was issued a 5-Day Suspension for reporting her supervisor to HR and Security. 4 a) On April 21, 2020, the Agency withdrew its firm job offer for position AF- 20MAR8YDOBBSL0913973. 4 b) In May 2021 Complainant was not rated in a timely manner by the Division Chief in May 2021. 4 c) In May 2021, Complainant was not rated in a timely manner by a management official. 4 d) On June 28, 2021, Complainant made a request for reasonable accommodation. 4 e) On July 13, 2021, Complainant was threatened with a civil suit for providing an agency official with the material ideas. 4 f) An agency official denied Complainant’s request to travel with his team on the development of hypersonic materials required for ground test facilities. 4 g) On August 30, 2021, the Division Chief threatened to file a civil suit against Complainant for her off duty volunteer work in Afghanistan evacuations. 2022005104 3 4 h) On September 8, 2021, Complainant’s reasonable accommodation request was denied. 4 i) On September 15, 2021, the Division Chief told Complainant to cancel a meeting within 15 minutes when it was required for her job and had been approved approximately 40 days in advance. 4 j) On September 15, 2021, an agency official told Complainant to cancel a meeting within 15 minutes when it was required for her job and had been approved approximately 40 days in advance. 4 k) On September 15, 2021, an agency official told Complainant to cancel a meeting within 15 minutes when it was required for her job and had been approved approximately 40 days in advance. 4 l) On September 8, 2021, Complainant was denied the opportunity to be reimbursed for a TDY on 8 September 2021, by the Division Chief. 4 m) On September 8, 2021, Complainant was denied the opportunity to be reimbursed for a TDY on 8 September 2021, by an agency official. 4 n) On September 15, 2021, an agency official did not respond to Complainant’s reasonable accommodation request after 309 days. 4 o) On September 15, 2021, the Major General did not respond to Complainant’s reasonable accommodation request after 309 days. 4 p) On September 15, 2021, the Director did not respond to Complainant’s reasonable accommodation request after 309 days. 4 q) On September 15, 2021, an agency official did not respond to Complainant’s reasonable accommodation request after 309 days. 4 r) On September 15, 2021, an agency official did not respond to Complainant’s reasonable accommodation request after 309 days. 4 s) On September 15, 2021, Complainant was accused of hanging up the phone during a meeting. 4 t) During the week of September 13, 2021, Complainant’s disability was openly discussed in front of her coworkers, and she was aggressively followed to her car. 4 u) On September 21, 2021, Complainant was issued a warning letter for unprofessional behavior. 2022005104 4 4 v) On September 21, 2021, Complainant’s request to give a same presentation was denied. 4 w) Complainant did not receive a response to her reasonable accommodation request within the required 10 days mandated by DAFI 36-2710. 4 x) On November 10, 2021, Complainant was notified that the Division Chief was just made aware of her reasonable accommodation request. 4 y) On November 11, 2021, Complainant received a Proposed Reprimand. 4 z) On November 14, 2021, the Division Chief accused Complainant of self- diagnosing her condition. 4 aa) On November 14, 2021, the Director accused Complainant of self-diagnosing her condition. 4 bb) On November 21, 2021, the Disability Manager told Complainant that management would determine if she was disabled and that she did not provide sufficient documentation for management to approve her reasonable accommodation request. 4 cc) On November 22, 2021, Complainant was asked to sign an inaccurate memorandum of record summarizing her meeting with the Disability Manager. 4 dd) On November 22, 2021, Complainant was notified that management required additional information about her disability. 4 ee) On November 22, 2021, Complainant was notified that a diagnosis was required from her doctor. 4 ff) On December 1, 2021, management did not reply to Complainant after she submitted a letter from her doctor with the requested information. 4 gg) On December 10, 2021, Complainant mentioned that AFOTEC leadership excluded an African American male counterpart from a meeting with AFRL, and management expressed that she was no longer required to attend the meeting. 4 hh) On December 10, 2021, Complainant was harassed continuously due to management’s lack of response in a timely manner. 2022005104 5 4 ii) On December 10, 2021, Complainant notified information about her doctor calling and requested that the Director be turned in to the Department of Justice for continued harassment and failure to respond to her reasonable accommodation request. 4 jj) On December 10, 2021, management denied Complainant’s request to work remotely. 4 kk) On December 15, 2021, Complainant was denied the utilization of materials available for a project with the intent to steal her idea. 4 ll) On December 20, 2021, Complainant received a Letter of Reprimand. 4 mm) On December 20, 2021, Complainant’s job offer was withdrawn. 4 nn) Complainant’s LWOP was entered in her ATAAPS for $600 worth of time on December 20, 2021, and January 31, 2022. 4 oo) On January 21, 2022, Complainant was notified that the Agency sent her doctor a letter for additional information on her scleroderma. 4 pp) On January 21, 2022, Complainant was notified that the Agency sent her doctor a letter for additional information on her thyroid condition. 4 qq) Complainant was issued a notice of removal of security clearance the day she was supposed to start methotrexate (chemotherapy drug) and the week before she was scheduled for surgery (which required 30 days of incapacitation), and she was required to respond to the notice during the time she was incapacitated. 4 rr) Complainant received information from Social Security and OPM FERS that the supervisor and CPS’s section on her forms included information that she received a non-disciplinary letter of counseling on September 23, 2021; was issued a proposed reprimand on November 10, 2021; received a formal reprimand on December 20, 2021; a proposed suspension for conduct unbecoming federal employee; and numerous written and verbal performance-based counseling/reminders/discussions. On August 25, 2022, the Agency notified Complainant that claims 2(a) - 2(j) were accepted for investigation. The Agency advised Complainant that claims 4(a) - 4(rr) were dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for stating the same claims pending before or having been decided by the Agency or Commission. The Agency also advised Complainant that claims 4(a) - 4(rr) would not be investigated with the other accepted claims of discrimination. 2022005104 6 On September 27, 2022, Complainant appealed the Agency’s decision to the Commission. Complainant submitted a statement with her appeal, it appears that she is attempting to appeal the accepted portion of her complaint and the dismissed claims. The Agency filed a statement opposing the appeal. The Agency argues that the appeal should be closed because Complainant has no standing to initiate the appeal. An appeal cannot be filed by a complainant until the agency issues a “final action or dismissal of a complaint.” 29 C.F.R. § 1614.401(a). Upon review, we find that Complainant’s appeal is premature. It is premature for Complainant to appeal the accepted claims for investigation because the Agency has not taken final action or dismissed the accepted claims. Similarly, Complainant cannot appeal the dismissed portion of her complaint at this juncture. The amendments to 29 C.F.R. Part 1614, effective November 9, 1999, eliminated the right to appeal the dismissal of a portion of a complaint prior to an agency's final action or decision on the entire complaint. See 64 Fed. Reg. 37,647. Accordingly, Complainant’s appeal is DISMISSED. Complainant is advised that she may file a new appeal when a final decision is issued by the Agency in this case. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 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 2022005104 7 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, a 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. 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. 2022005104 8 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 January 31, 2023 Date