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

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2021000051 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barry G.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021000051 Hearing No. 451-2020-00013X Agency No. 8Z0J1900151 DECISION On October 1, 2020, Complainant filed a premature appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ)’s decision concerning his equal employment opportunity (EEO) complaint alleging 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 At the time of events giving rise to this complaint, Complainant worked as an Instructor at the Agency’s Defense Language Institute English Language Center (DLIELC) in Lackland Airforce Base, Texas. On February 25, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (Post-Traumatic Stress Disorder), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 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. 2021000051 2 1. Complainant's coworker (Coworker) was allowed to harass him while he was temporarily working in Saudi Arabia; 2. Complainant was ordered to return home early from Saudi Arabia and contact the Occupational Health Unit for a psychological consultation; 3. Complainant was Issued 971 notes for not maintaining a professional relationship and not completing his Mobility Training Team Temporary Duty; 4. Traveling to Dubai using his personal funds and time; and 5. Denying him a choice mobility training team assignment in Chad. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission AJ. Complainant timely requested a hearing and the AJ held a hearing on August 31, 2020, and issued a decision on September 1, 2020. In their decision, the AJ determined that Complainant failed to prove that the Agency discriminated against him based on his race, disability, or the instant EEO activity. The AJ found that while Complainant genuinely harbored the belief that the Coworker harassed him, and ascribed the harassment to race, this belief was rooted in Complainant's own perceptions. Following Complainant's testimony and considering all of the evidence, the AJ found that Complainant's claims comprised of unprofessional or boorish acts such as shouting, belittling, insistence on particular seating, refusal to show trust in front of colleagues, disagreement about micromanagement, daily acts of inconsiderate behavior, and so on. In addition, the AJ provided that the Agency responded to Complainant's concerns, and the concerns of Coworker, who also notably made reports against Complainant. To this end, the AJ determined that the Agency remained consistently responsive and worked with Complainant and Coworker's supervisory chain. In regard to Complainant's claims following his return from Saudi Arabia, the AJ found that the record did not manifest probative evidence of his claims. Rather, Complainant's post- deployment health assessment was within Agency policy, and there were reports that Complainant was unwell, including mental and physical symptoms. Overall, the AJ found that Complainant's Supervisor provided highly credible testimony, despite Complainant's disagreement with his testimony. Following the AJ decision, on October 1, 2020, prior to the end of the forty-day period to issue a final agency decision, Complainant filed an appeal with the Commission. On appeal, Complainant questions the AJ's decision and provides numerous comments disagreeing with the statement of facts. For example, in response to the Agency's inability to house Complainant or provide for his explicit safety, Complainant argues that while he was deployed in Saudi Arabia, the Agency was responsible for him, and should not have failed to protect him. 2021000051 3 Moreover, Complainant argues that while the Agency says they did not intend to discriminate against him, it does not take away from the fact that its actions were discriminatory. Complainant takes issue with the hearing process and contends that he was not afforded proper latitude in conducting discovery and was not able to adequately argue his case during the hearing due to the AJ’s behavior. Premature Appeal When an AJ has issued a decision under 29 C.F.R. § 1614.109(b), (g) or (i), the Agency shall take final action on the complaint by issuing a final order within 40 days of the receipt of the hearing file and the AJ’s decision. 29 C.F.R. § 1614.110(a). EEOC Regulation 29 C.F.R. § 1614.109(i) provides that if an agency does not issue a final order within 40 days of receipt of the AJ’s decision in accordance with 29 C.F.R. § 1614.110, the decision of the AJ shall become the final action of the Agency. In this matter, Complainant prematurely submitted his appeal following receipt of the AJ’s decision. However, since the Agency has not issued a final action, the AJ’s decision became the Agency’s final action by operation of law. Ela O. v Nat’l Sec. Agency, EEOC Appeal No. 0720130021 (Oct. 30, 2015) (AJ’s finding of discrimination became agency’s final decision by operation of law where agency failed to take action during the 40-day period) While Complainant’s appeal was premature when filed on October 1, 2020, it is now cured and ripe for adjudication. AJ Decision Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.B. (Aug. 5, 2015). We note that the record is absent any harassment from the Coworker which regards Complainant's race, including any slurs or jokes. While Complainant contends that he did not request medical services, we do not find that such was necessary, or that in the absence of a request, that the referral for a post-deployment health assessment was discriminatory. 2021000051 4 Rather, as noted by the AJ, Complainant was notably exhibiting concerning mental and physical symptoms, and the assessment was performed by the same doctor who examined him pre- deployment. To the extent that Complainant argues that his representative was not allowed to perform a cross examination of the Colonel, the hearing record reflects that the Colonel was cross-examined by Complainant's representative. See Hearing Transcript 154-81. Regarding Complainant’s additional complaints about the hearing process, we note that the Commission's regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant's hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or course of EEO administrative hearings. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). In the present case, after a review of the hearing record, we do not find that the AJ berated Complainant’s representative, nor that the AJ prevented Complainant from arguing his case. Likewise, we do not find that the AJ inappropriately narrowed the scope of discovery or performed any actions which would be fatal to Complainant’s case. We reiterate that the AJ has broad discretion in conducting the hearing process. It appears that the AJ afforded Complainant numerous opportunities to testify, submits arguments, and ample time to provide evidence in support of his case. Despite the motion hearings and evidentiary hearing wherein there were multiple witnesses, the AJ found that Complainant failed to show that he was discriminated against as alleged. While we acknowledge Complainant's extensive arguments on appeal, we do not find that he has convincingly shown that the AJ improperly adjudicated his case. Upon review of the hearing transcript, the AJ decision, the numerous motions throughout the record, and the record as a whole, we find that the substantial evidence support the AJ’s decision. We note that the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for their decision. The AJ held a hearing, examined and considered witnesses, as well as Complainant’s arguments and evidence. Accordingly, we AFFIRM Agency’s final order implementing the AJ’s decision. 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. 2021000051 5 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). 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. 2021000051 6 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 September 6, 2022 Date