Complainant,v.Michael B. Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Sep 5, 2013

0120113813 (E.E.O.C. Sep. 5, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120113813

Agency No. 9R1M09199F10

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated June 28, 2011,
finding no discrimination. For the following reasons, we AFFIRM the Agency’s final
decision.

BACKGROUND

In her complaint, Complainant alleged discrimination alleged discrimination based on sex
(female), disability (asthma, arthritis, and bipolar), and in reprisal for prior EEO activity
when:

(1) Around June 1, 2009, her immediate supervisor threatened her by telling her he was
going to place her back in the cage because she was a troublemaker;
(2) On June 5, 2009, she was placed in Absent Without Official Leave (AWOL) status
for 15 minutes;
(3) On June 29, 2009, she received a proposal to suspend from duty without pay for
three days based on a charge of leaving the job without permission;
(4) On July 2, 2009, she received an amendment to the proposed three-day suspension
with an additional five days to reply;
(5) On July 8, 2009, she was placed in AWOL status for 2.5 hours for leaving the work
area to go to the Union Hall without permission;
(6) On July 17, 2009, she received a Notice of Proposed Suspension for five days for
leaving the job without permission; and
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(7) On August 18, 2009, she received a Notice of Decision to Suspend for five days.1

After completion of the investigation of the complaint, Complainant did not request a hearing.
The Agency thus issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its actions, which Complainant failed to rebut.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (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”).

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the time of the alleged incidents, Complainant was
employed as a Supply Technician/Production Material Technician (PMT), GS-2205-07, in the
Component Repair and Exchangeable Production Support Center Flight, 572nd Commodities
Maintenance Squadron, at Robins Air Force Base, Georgia. Complainant’s tour of duty was
from 7 a.m. to 3:45 p.m., Monday through Friday.

With regard to claim (1), Complainant’s first-level supervisor (S1) denied making the alleged
comment or threatening Complainant. S1 acknowledged that he told Complainant that she was
going to be moved due to her security issues, the workload situation, and cross training other
PMTs.

With regard to claim (2), S1 indicated that Complainant left her job 15 minutes early on June
5, 2009, without permission and thus, she was charged with AWOL. As a result, Complainant
was issued the Notice of Proposed Suspension, described in claim (3), which was later
amended with an additional 5 days to reply thereto, described in claim (4).

With regard to claim (5), Complainant’s third-level supervisor (S3) acknowledged that he did
give Complainant his permission to make a trip to the Union Hall on June 30, 2009. However,
S3 stated that he did not give Complainant his permission to go to the Union Hall on July 8,

1 We note that the Agency previously dismissed five other claims for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1). Since Complainant does not challenge the dismissal
on appeal we will not address these claims.
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2009. Thus, Complainant was charged with AWOL for 2.5 hours for leaving the work area to
go to the Union Hall without permission on July 8, 2009.

With regard to claim (6), S3 stated that he issued Complainant a Notice of Proposed
Suspension for five days for leaving the job without permission on June 5, 2009, and July 8,
2009, as described in claims (2) and (5). Subsequently, S3 issued Complainant a Notice of
Decision to Suspend, described in claim (7).

With regard to her claim of harassment, we find that Complainant failed to establish the
severity of the conduct in question or that it was related to any protected basis of
discrimination. We also find that Complainant failed to show that she was treated less
favorably than a similarly situated employee under similar circumstances. It is noted that we
do not address in this decision whether Complainant is a qualified individual with a disability.
Furthermore, we note that Complainant has not claimed that she was denied a reasonable
accommodation. Based on the foregoing, we find that Complainant has failed to show that the
Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 request or
opposition must also include proof of service on the other party.
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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.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 5, 2013
Date