Janet B.,1 Complainant,v.Lisa S. Disbrow, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jun 2, 2017

0120151080 (E.E.O.C. Jun. 2, 2017)

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

Janet B.,1
Complainant,

v.

Lisa S. Disbrow,
Acting Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120151080

Agency No. 5C1C12005F13

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 13,
2015, final decision concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Clerk at the Child Development Center (CDC) on Holloman Air Force
Base in New Mexico. On November 9, 2012, she filed an EEO complaint in which she alleged
that the Child Development Center Director, her immediate supervisor (S1), harassed her on six
occasions between April and October 2012 because of her disabilities (bone spurs in her feet,
depression) and prior protected EEO activity.2 The six incidents are identified as follows:

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 Complainant initially included her age (63) as an alleged basis, but withdrew her claim of age
discrimination during the investigation, saying that “99% of her case was reprisal.” Investigative
Report (IR) 54. She also withdrew her claim of disability discrimination with respect to
incidents (1), (2), and (4) listed and described below. IR 58, 60, 62.
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1. On April 27, 2012, S1 accused Complainant of stealing the private information
from parents and children who utilized the CDC.

2. On June 14, 2012, S1 directed Complainant to check in before and after her lunch
and breaks.

3. On August 25, 2012, S1 called security forces to apprehend Complainant.

4. On October 1, 2012, S1 asked Complainant to perform distribution duties despite
the fact that she told S1 that her feet were hurting due to her disability.

5. On October 2, 2012, S1 forced Complainant to allow a Computer Data
Automation Specialist (CDAS) to pray over her.

6. On October 5, 2012, S1 charged Complainant with approximately three hours of
absence without leave (AWOL).

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

Incident (1): Complainant averred because she worked in a facility other than the main office,
she had to retrieve her email from the main office using a hard drive that she had been issued in
her previous job. She stated that on April 27, 2012, as she was in the process of loading her
email onto the hard drive, S1 accused her of appropriating the private information of children
and parents who were served by the CDC. S1 directed the CDAS to examine the hard drive.
The CDAS did so and reported that no unauthorized information was present on the drive. IR
55-56. S1 explained that Complainant was using a hard drive that was not authorized, and that
when she asked Complainant what she had put on the drive, Complainant responded, “children’s
files.” S1 then averred that she ordered Complainant to turn the drive over to the CDAS, who
examined it and returned it to Complainant. IR 98, 133-134. The CDAS verified that no one’s
personal data was on the drive. IR 149.

Incident (2): Complainant averred that on June 14, 2012, she received an email from S1
informing her that she had to check in before and after she took breaks and left for lunch. IR 56.
S1 responded that the policy applied to all staff members, and that she had given Complainant a
reminder because of her noncompliance with the policy. IR 99, 109-11, 115, 219. S1’s
supervisor, the Airmen and Family Services Flight Chief, reported that S1 had come to her with
concerns about not knowing where Complainant was or when she left the desk while school-age
children were present in the facility. IR 134. The Preschool Director averred that all of the CDC
staff had signed the memorandum outlining the check-in policy, and that she heard the Flight
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Chief remind Complainant and the other staff members to let management know whenever they
left the desk so that management could get someone to cover for them. IR 143. A Desk Clerk
(DC1) and Childcare Educator stated that Complainant was the only employee who was asked to
check in before and after her breaks, but DC1 acknowledged that Complainant was asked to do
this because she worked in a different building. IR 155, 183. Another Desk Clerk (DC2)
averred that Complainant would leave her duty station for various amounts of time without
notifying management or the other desk clerks, and that no one knew where she went or when
she would return. IR 163.

Incident (3): Complainant averred that on August 25, 2012, she went to the office to work
overtime but that S1 had ordered her to leave without an explanation. According to
Complainant, S1 called Security when she refused to leave and that when security personnel
arrived, they handcuffed her. IR 53. S1 averred that Complainant’s behavior on August 25,
2012, was “unprofessional,” that she smelled of alcohol and was behaving erratically. She
maintained that Complainant had arrived late, and that she began talking to other staff members
in a very loud voice causing them to become upset. S1 further averred that she gave
Complainant a direct order to leave, that Complainant refused to obey the order, and that she
contacted the Civilian Personnel Office, the Flight Chief, and Security. In addition, S1 stated
that Security had administered a field sobriety test to Complainant, and that although no alcohol
was detected, they recommended that someone pick her up. IR 96-97. DC1, who observed the
interaction between S1 and Complainant before Security arrived, averred that S1 had refused to
let Complainant speak. IR 155. DC2 averred that after Complainant had left S1’s office, she
asked Complainant a question and that Complainant “flew off the handle,” with her and other
desk clerks. IR 161-62.

Incident (4): Complainant averred when S1 asked her to perform distribution duties on October
1, 2012, she informed S1 that her feet were hurting very badly and asked S1 if someone else
could do the distribution. Complainant also averred that S1 told her to work on distribution
anyway, and that she did as she was told and reported the incident to the EEO office afterward.
IR 62. S1 averred that she did not recall Complainant mentioning anything about her feet
hurting or about performing distribution duties. IR 101. DC1 averred that S1 had told
Complainant to handle distribution but that she did not hear Complainant tell S1 that her feet
hurt. DC1 also averred that she offered to assist Complainant several times, but that
Complainant told her that she could do the job. IR 156. The Child Care Provider averred that
Complainant had told her that her feet were hurting, and that she urged Complainant to go home.
IR 177.

Incident (5): Complainant averred that she was called into S1’s office, where the CDAS was in
conference with S1. She stated that S1 “mentioned something about prayer,” to which she
replied, “everybody needs prayer.” She further averred that the CDAS prayed over her and that
afterward, she left S1’s office. Finally, Complainant averred that she did not protest the prayer
because she was trying to “save her job.” IR 60-61. According to S1’s version of the incident,
Complainant had come into her office to discuss her repeated request for a computer drop at the
front desk, and that the CDAS closed the office job and asked Complainant if he could pray for
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her, to which Complainant purportedly replied, “yes, please – all prayers help.” The CDAS then
did so. IR 100, 107-08, 143. Both the CDAS and DC2 averred that no one forced Complainant
to remain in the office and that no coercion was involved. IR 149, 163-64.

Incident (6): Complainant averred that she arrived for work approximately three hours late on
October 5, 2012, and that S1 refused to allow her to take annual leave to cover the absence and
instead charged her with AWOL. IR 64. On October 5, 2012, S1 was on leave and the
Preschool Director was acting for her. S1 responded that when she returned to the office, she
denied Complainant’s leave request because Complainant failed to abide by an Agency policy
which mandated that annual leave was to be scheduled up to two weeks in advance. IR 101,
117-18, 124-27, 144, 156, 218, 223-24.

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. (Aug. 5, 2015) (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”).

To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected classes; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). To prevail on her claim of discriminatory harassment, Complainant must prove, by a
preponderance of the evidence, that because of her disabilities and previous EEO activity, S1 had
subjected her to conduct severe, pervasive or patterned enough to alter the conditions of her
employment and create an abusive working environment. Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

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Complainant asserted that based on her protected classes, management subjected her to a hostile
work environment. Complainant alleged several incidents of what she believed to be
discriminatory and retaliatory harassment. When asked by the EEO investigator why she
believed that the six incidents were retaliatory, Complainant replied that it was because she had
challenged S1 “on other things,” because she had gone to the union about her situation, because
she had reported the incidents to the EEO office following an unsuccessful attempt at mediation,
and because S1 knew about the prior EEO grievance and held it against her. IR 54, 57-59, 61,
63, 66. When asked why she believed that incidents (3), (5), and (6) were based upon her
disability, Complainant averred that S1 did not understand her disability or her sleeping patterns
and refused to allow her to explain. IR 66.

Complainant also presented the affidavits of several of her coworkers, DC1, a Training
Technician, and a Childcare Provider. When asked if she believed that S1 treated Complainant
differently because of her disability and prior EEO activity, DC1 replied that although there were
indications that S1 treated Complainant differently than other employees, she could not say
whether it was because of her disability or prior EEO activity. IR 158. The Training Technician
opined that S1 discriminated against Complainant because of the way she talked down to her, but
admitted that he had his own EEO complaint against S1, one of the claims of which was
harassment. IR 172-73, 213. The Childcare Provider opined that Complainant was
discriminated against based on her age, but Complainant had withdrawn age as a basis in her
complaint. IR 54, 179. Other witnesses provided affidavits as well. When asked if she believed
that Complainant was discriminated against because of her disability and prior EEO activity,
DC2 replied “no.” IR 166-67. The Childcare Educator opined that she believed Complainant
was being discriminated against by S1, but when asked to elaborate, she stated that S1 could be
very controlling and vindictive, that no one wanted to work with Complainant because of the
perception that Complainant did not know her job, and that Complainant never received proper
training for her job. IR 185.

We note that there is considerable testimonial evidence that Complainant and S1 did not get
along, that S1 kept Complainant on a tighter leash than other staff members by virtue of
requiring her to check in before and after her breaks, and that S1 had charged her with AWOL,
but this evidence is insufficient to establish that S1 had done those things while harboring
unlawful consideration of Complainant’s disability or previous EEO activity. S1 had articulated
legitimate, nondiscriminatory explanations for all six incidents.

Neither the sworn statements of DC1 nor those of the Training Technician or the Childcare
Educator are sufficient to contradict the explanations for those incidents put forward by S1 or
call into question S1’s veracity as to whether or not she discriminated or retaliated against
Complainant. As Complainant chose not to request a hearing, the Commission does not have the
benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Since
Complainant failed to establish the existence of a discriminatory intent on the part of S1, no
further inquiry is necessary as to whether the incidents complained of rise to the level of
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harassment. Nicki D. v. Department of Veterans Affairs, EEOC Appeal No. 0120133247
(October 15, 2015).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant was not discriminated against and harassed as
alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington,
DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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.

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,
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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

June 2, 2017
Date