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

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2022002739 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felipa A.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022002739 Hearing No. 451-2019-00112X Agency No. 9P0J18011 DISMISSAL OF APPEAL On April 19, 2022, Complainant filed an appeal to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an EEOC Administrative Judge’s Order, dated February 23, 2022, concerning her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. During the period at issue, Complainant worked as a Plans and Program Specialist (Chief, Civilian Personnel Programs), GS-0301-09, with Civilian Personnel Programs at Headquarters Air Education and Training Command AETC, Headquarters Air Force Recruiting Service (AFRS) at Randolph Air Force Base (AFB), in Texas. On April 11, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (69), and in reprisal for prior EEO activity 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. 2022002739 2 A. Complainant was subjected to a pattern of harassment/hostile work environment since December 22, 2016, by her supervisor (S1) when: 1. S1 came on board in July 2016 and did not provide initial expectations to Complainant until December 2016 and continued to use the word “feedback,” after Complainant explained an employee needs to be on a performance plan for 30 days. 2. Complainant accused the S1 of removing the employee 6-part folder/supervisor folder, which was in place prior to her arrival.2 3. Complainant was exposed to continuous micro-management and treated less favorably than her male counterparts. 4. S1 refused to address issues directly with Complainant. 5. Complainant was forced to file an administrative grievance. 6. S1 removed Complainant’s ability to effectively do her job. 7. On or about March 2017, S1 removed Complainant from the telework program, accused her of falsifying her timecard and then refused to certify Complainant’s timecard. 8. On or about April 2017, Complainant’s request for sick leave was rejected and she was issued a Letter of Counseling. 9. On or about May 2017, S1 sent threatening emails to Complainant accusing her of blatantly disregarding directions, then presented Complainant with her appraisal indicating she had “barely” met standards. 10. On or about May 2017, Complainant was issued a proposed one-day suspension, which was mitigated to a Letter of Reprimand. 11. On or about August 2017, job responsibilities were being removed from Complainant while S1 was on TDY, which is when the issues with AFPC staffers began. 12. On or about October 2017, Complainant was issued a Letter of Instruction accusing her of leave abuse. 2 During the investigation, Complainant identified that she had accused S1 and not vice versa. 2022002739 3 13. On or about October 2017, Complainant was issued a proposed five-day suspension Letter of Instruction. B. Complainant was discriminated against based on her age (49), sex (female), and in reprisal for prior EEO activity by S1, and subjected to ongoing harassment when: 1. On February 6, 2018, Complainant received negative feedback on her performance appraisal. 2. On March 26, 2018, Complainant received a Letter of Counseling. After an investigation, the Agency provided Complainant with a copy of the reports of investigation and notice of her right to request a hearing before an AJ. On February 23, 2022, the AJ dismissed Complainant’s hearing request because Complainant failed to show good cause for her failure to attend a scheduled Initial Conference. The AJ remanded the matter to the Agency for the issuance of a final decision. On April 19, 2022, prior to receiving a final decision from the Agency, Complainant filed the instant appeal. The Commission’s regulations at 29 C.F.R. § 1614.110(b) state that when an Agency shall take final action by issuing a final decision “within 60 days of receiving notification that Complainant has requested an immediate decision from the Agency.” The regulations at 29 C.F.R. § 1614.110(b) further state that “the final decision shall consist of findings by the agency on the merits of each issue in the complaint, or as, appropriate, the rationale for dismissing any claims in the complaint.” In the instant case, it is clear that the AJ remanded the formal complaint to the Agency for issuance of a final decision pursuant to 29 C.F.R. 1614.110(b). The Commission does not accept interlocutory appeals from an AJ’s order of dismissing a hearing request. Here, if the Agency had not issued a final decision, the Commission would have ordered it to issue a final decision addressing the merits of Complainant’s complaint. However, we note that the Agency has indeed issued a final decision on the instant formal complaint, which is currently pending on appeal with the Commission under EEOC Appeal No. 2023000272. If Complainant wishes to pursue further challenge the AJ’s order dismissing her hearing request, she is advised to do so in that appeal. For the reasons discussed above, Complainant’s appeal is DISMISSED. 2022002739 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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 to consider, with supporting statement or brief, must be filled with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital formal via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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, 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. 2022002739 5 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 December 19, 2022 Date