[Redacted], Nancy D., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionMar 15, 2021Appeal No. 2020000626 (E.E.O.C. Mar. 15, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nancy D.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020000626 Hearing No. 550-2018-00074X Agency No. 9M0R16008 DECISION On September 23, 2019, Complainant filed an appeal from a decision issued by an EEOC Administrative Judge (AJ), dated October 22, 2018, 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 a Human Resources (HR) Specialist at the Agency’s Joint Base Elmendorf-Richardson (JBER) in Alaska. On October 27, 2016, Complainant filed an EEO formal complaint alleging that the Agency discriminated against her based on race (African-American), sex (female), color (Black), age (over 40), and in reprisal for prior EEO activity when: 1. The Labor Relations Officer, also Complainant’s immediate supervisor, and the Civilian Personnel Officer: 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. 2020000626 2 a. continually harassed Complainant on work assignments, training requests, leave requests, medical attention, and a worker’s compensation claim; b. on January 6, 2017, Complainant met with the Lieutenant Colonel (LC), 673 FSS/CC, to discuss the removal of donated leave from her leave bank by her supervisor. LC acknowledged during this meeting he had not reviewed any correspondence sent to him by Complainant regarding her donated leave; c. on March 17, 2017, LC stated during a telephone conversation with Complainant’s representative, supervisor, and the Deputy Director, also Complainant’s third-line supervisor, the Agency decided Complainant should return to her office in the Civilian Personnel Office on March 20, 2017; d. on March 17, 2017, the Deputy Director contacted Complainant’s representative and during their conversation stated she was aware of Complainant’s doctor’s statement requesting a reasonable accommodation but did not consider it grounds for not returning Complainant to her place of employment in the Civilian Personnel Office; e. on March 20, 2017, Complainant reported to LC’s office as requested and asked him about returning her to a hostile work environment. when her doctor’s note said she should not and LC stated he did not care what the doctor’s statement said and he was ordering Complainant to comply with returning to work in the Civilian Personnel Office; f. on March 20, 2017, Complainant requested leave for the remainder of the day as well as for March 21 and 23, 2017, and the supervisor denied her request in spite of the requirements imposed by Complainant’s doctor and Complainant’s need to have medical testing; and g. on May 26, 2017, Complainant’s last day at work, the supervisor issued Complainant’s final closeout rating even though the supervisor had less than 90-days of supervision over Complainant, in direct conflict with guidance in AFI 36-1001, paragraph 2.1. 2. Complainant alleged she was discriminated against on the basis of reprisal and harassment when the following events occurred: a. on December 3, 2016, the supervisor removed Complainant from the Voluntary Leave Transfer Program without a written request from Complainant. Additionally, the supervisor has continuously refused to correct Complainant’s time card beginning on September 13, 2016; 2020000626 3 b. on December 12 and 20, 2016, the supervisor denied the use of donated leave to Complainant as well as vacation and sick leave, which in turn caused Complainant to a hardship by being placed on Leave Without Pay (LWOP); c. on January 6, 2017, Complainant was called to a meeting with LC to discuss the issue regarding 40 hours of donated leave that was never totally applied to Complainant’s leave back. LC requested to be given two weeks to determine why the supervisor had not applied the leave to Complainant’s leave bank. LC did not respond to this issue until March 3, 2017; d. on January 27, 2017, Complainant attended a meeting with LC and the Supervisory HR Specialist, also Complainant’s second-line supervisor. Complainant explained to LC that she felt uncomfortable meeting with the Supervisory HR Specialist because of her previous experiences with her. During this meeting, LC stated that what happened to Complainant on July 13, 2016, when she passed out, was not work related, but caused by a pre-existing medical condition. Furthermore, the results back from the Commander Directed Investigation (CDI) on Complainant’s working environment concluded the work environment is deemed not to be hostile. During this meeting, LC also issued a “veiled threat” when he stated he was going to put Complainant back in her office or she could take a downgrade to the GS-11 position she is currently working in and insisted Complainant take the offer. Complainant was given only one day to make this major decision. Complainant has a doctor’s statement that states her passing out at work was exacerbated by the stress she is under in the position she held at that time. While the Supervisory HR Specialist and LC are Complainant’s chain of command, they are not her medical doctor and not in a position to disavow the medical doctor’s advice or diagnosis; e. on March 3, 2017, Complainant met with the Deputy Director, LC and the Operations Officer, under the guise of discussing the 54 hours of donated leave to Complainant’s leave bank. Complainant’s supervisor never corrected Complainant’s time card to reflect the addition of 14.05 hours of donated leave that was removed from Complainant’s leave bank. On January 17, 2017, the supervisor was instructed to restore Complainant’s leave bank with the balance of donated leave. To date, the supervisor has not completed this action. The conversation turned to the resolution of Complainant’s EEO complaint. Complainant informed the parties that she now has a representative and is not comfortable discussing the issues raised in her EEO complaint; f. on March 22, 2017, the supervisor demanded Complainant attend an offsite Retirement Luncheon for another employee in the office, or take annual leave, and then slammed her office door, stormed out of the office, and turned off the entire office’s lights leaving Complainant in the dark; 2020000626 4 g. on March 22, 2017, after the supervisor turned off the office lights leaving Complainant in the dark, Complainant got up from her office, turned the lights back on and the supervisor returned to the office, turned the lights back off and threatened Complainant by stating “[You] had better not turn the lights back on and [you can] work in the dark until [I] [return] from the luncheon.” After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant did not respond to the motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency did not issue a final order, and the AJ’s decision became the final decision in this matter. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the AJ’s decision without a hearing, finding no discrimination. 2020000626 5 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 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). 2020000626 6 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. 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 March 15, 2021 Date Copy with citationCopy as parenthetical citation