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

Equal Employment Opportunity Commission

Nov 29, 2022

Appeal No. 2022001509 (E.E.O.C. Nov. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tricia B.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022001509 Hearing No. 451-2021-00015X Agency No. 7A0J2000576F22 DECISION On January 24, 2022, 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 December 23, 2021 final order 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 period at issue, Complainant worked for the Agency in a Supervisory Financial Management position, GS-0501-14, at the 502nd Comptroller Squadron (CPTS), Joint Base San Antonio (JBSA) Fort Sam Houston, Texas. On April 9, 2020, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency discriminated against her based on her race (Black), sex (female), and in reprisal for prior protected EEO activity (Agency No. 7F0J1800170) when, on January 16, 2020, she received a Letter of Reprimand (LOR) for failure to follow instructions. 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 2022001509 After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the assigned AJ granted the Agency’s April 30, 2021 motion for a decision without a hearing. On November 17, 2021, the AJ issued a decision by summary judgment in favor of the Agency, concluding no discrimination or unlawful retaliation was established. The Agency subsequently issued a final order, on December 23, 2021, adopting the AJ’s decision. The instant appeal followed. On appeal, Complainant argues that she identified multiple comparators, that there was a nexus between Complainant’s prior EEO activity and the LOR she received, and that the AJ erred in failing to use the summary judgment standard in reviewing the evidence. ANALYSIS AND FINDINGS 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). 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. The AJ found that the record was sufficiently developed, and no genuine dispute of material facts remained. On appeal, Complainant argues that her two supervisors had differing reasons for the need for face-to-face feedback, and those inconsistencies demonstrate that there is an issue of credibility, requiring a hearing. We find that Complainant fails to provide evidence that a genuine dispute of material fact exists. The differing testimony with regard to why face-to-face feedback was necessary is not a material fact in this matter. The AJ acknowledged that Complainant asserted that similarly situated comparators were not treated in the same manner as she was. The AJ determined, however, that the comparators were not similarly situated to Complainant. None of the comparators had the same supervisors as Complainant, particularly the supervisor who made the decision to issue the LOR. 3 2022001509 A comparator must be similarly situated to a complainant, and that includes having the same line of supervision. None of the comparators were similarly situated to Complainant. The AJ also determined that Complainant’s prior EEO activity lacked the requisite temporal nexus to create a presumption of discriminatory animus on the basis of reprisal. Complainant’s prior EEO activity consisted of filing a prior complaint on December 13, 2017. The LOR was issued January 16, 2020, nearly over two years later. Additionally, Complainant’s prior EEO complaint was filed against a different commander than the commander in the instant formal complaint. Complainant’s current commander, at the time of the instant matter, did not take command until July 2019. Moreover, even if Complainant established a prima facie case on the raised bases, the record supports the AJ’s determination that the Agency articulated legitimate, nondiscriminatory reason for issuing Complainant the LOR. On October 23, 2019, Complainant was instructed to provide face-to face feedback to a subordinate by October 31, 2019.2 Complainant did not provide that feedback until December 31, 2019, two months beyond the deadline. Complainant has not established that the Agency’s motivation for the issuance of the LOR was pretextual. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation was established. 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. 2 The record lists both October 30 and 31, 2019 as the deadline for Complainant to complete the face-to-face feedback. We will use the later of the two dates, October 31, 2019. 4 2022001509 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). 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. 5 2022001509 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 November 29, 2022 Date