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

Equal Employment Opportunity Commission

Mar 9, 2023

Appeal No. 2022001787 (E.E.O.C. Mar. 9, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dayle H.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022001787 Agency No. 9R1M2100273F22 DECISION 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 February 11, 2022 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 At the time of events giving rise to this complaint, Complainant was a Guest Services Representative, NF-0303-1, at the Agency’s Pine Oaks Lodging at Robins Air Force Base in Georgia. On May 7, 2021, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the basis of disability (Physical) when, on January 8, 2021, Complainant became aware she had been issued a Resignation Abandonment Personnel Action, dated January 6, 2021, when her supervisor called Complainant while she was working and told her “You are not supposed to be there; you don’t work here anymore.” Complainant was an hourly employee, who worked for the Agency from August 2019 to January 2021. Report of Investigation (ROI) at 182. 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. 2022001787 2 Complainant stated that she experienced complications from sickle cell anemia. Id. She stated that management has been aware of her medical condition since she began her employment. The record does not include medical documentation identifying any medical restrictions or a formal reasonable accommodation request. On December 17, 2020, Complainant submitted an Emergency Paid Sick Leave form for December 23, 2020, and indicated in the form that she was directed by a health care provider to self-quarantine due to COVID-19. On December 21, 2020, Complainant emailed the Director to complain that her first-level supervisor (S1) had not approved her leave yet and that S1 was absent and told Complainant to contact her third-level supervisor (S3) regarding the leave. Complainant claimed that she needed the leave because she had been put in danger of getting COVID-19 by being within six feet of people who were not masked. Complainant claimed that she called S3 10 minutes later and he said that he would look into it. On December 21, 2020, the Director emailed Complainant and explained that “weather and safety leave” was only for employees who were asymptomatic that have been directed by a public health, state or federal medical professional to self-quarantine due to close contact/exposure to a positive case. The Director explained they had not had a positive case at Complainant’s work location and there was no need to quarantine. The Director further noted that individuals with higher risk for COVID-19 were no longer covered under the “weather and safety leave” policy and that it had been removed about three months prior. The Director advised Complainant that she could take sick or annual leave depending on the situation. Complainant averred she had been told by S1 over the phone that her leave was approved on December 22, 2020. Complainant stated that her mother listened to the phone conversation and corroborated that S1 approved the leave. S1 confirmed that she spoke with Complainant on December 22, 2020, but stated that she informed her that she was still on the schedule to work. S1 stated that Complainant said “OK.” S1 affirmed that she learned on December 25, 2020, that Complainant had not reported to work. S1 stated that she called Complainant and Complainant said that she (S1) had told her that her leave was approved. S1 informed Complainant that she never told her that her leave request was approved. Complainant then called out for her mother to support Complainant’s version of the conversation. S1 stated that she told Complainant that she called to speak to her not her mother and that Complainant then hung up on her. Complainant was absent for three consecutive shifts without approval on December 25, 2020, December 26, 2020, and December 27, 2020. Under Agency policy, an employee who failed to report for work or notify management for three consecutive workdays without a reasonable explanation is considered to have resigned. ROI at 314. She returned on January 8, 2021. Because Complainant was deemed absent without approval for three consecutive days, S1 submitted paperwork to the Supervisory Human Resources Specialist (SHRS) for guidance for the Resignation-Abandonment action. Complainant’s second-level supervisor (S2) reviewed the documents prior to them going over to SHRS. S2 asserted that both S1 and the Director denied Complainant’s leave request. 2022001787 3 S3 noted that S1 informed him that Complainant ignored the disapproval of her leave request and did not call in or show up for work for three consecutive days. SHRS concluded that the Resignation-Abandonment action was warranted as Complainant did not have leave approval and did not report for three consecutive shifts. On January 6, 2021, the Acting Sustainment Flight Chief (Acting Chief) sent Complainant an email informing her that the Agency had processed a Resignation-Abandonment Personnel Action effective January 4, 2021. The email specified that the reason for the action was that Complainant had not reported for duty for three consecutive shifts, which was considered to be abandonment of her position. ROI at 39, 51-52, 237, 246. Complainant did not reply to the notice of the personnel action. ROI at 197. When she returned to work on January 8, 2021, she learned she had been issued a Resignation-Abandonment Personnel Action, dated January 6, 2021. S1 called Complainant while she was working and told her “You are not supposed to be there; you don’t work here anymore.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation 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). In the decision, the Agency found that Complainant was not subjected to discrimination as alleged. This appeal followed. 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”). Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2022001787 4 Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); see Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir. 1981) (applying this analytical framework to cases brought under the Rehabilitation Act). Assuming arguendo that Complainant established a prima facie case of discrimination, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant submitted an Emergency Paid Sick Leave request; however, she was informed that she was ineligible under the Agency’s policy. Complainant did not submit an annual or sick leave request as informed and did not report to work as scheduled. Complainant was absent from work for at least three consecutive days without approval. As a result, and in accordance with Agency policy, management initiated a Resignation Abandonment Personnel Action. The SHRS confirmed that the action complied with the controlling regulation and was consistent with actions taken against other employees for the same offense. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The Commission will not second-guess the business judgment of Agency officials regarding personnel decisions unless there was a demonstrably discriminatory motive. Camden v. Dep't of Justice, EEOC Appeal No. 0120093506 (July 27, 2012) req. for reconsid. den'd, EEOC Request No. 0520120603 (Jan. 31. 2013). As Complainant also did not request a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that the Agency discriminated against her because of Complainant's disability. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Finally, to the extent that Complainant is alleging that she was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2022001787 5 CONCLUSION We AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2022001787 6 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. 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 9, 2023 Date