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

Equal Employment Opportunity Commission

Aug 17, 2022

Appeal No. 2021003107 (E.E.O.C. Aug. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felton S.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021003107 Agency No. 4Z1G1901400F21 DECISION On May 4, 2021, 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 April 30, 2021, final 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a supervisory GS- 1701-07 Youth Program Coordinator at the Agency’s Youth Center and Youth Center Annex, 90th Force Support Squadron, 90th Mission Support Group, 90th Missile Wing, at F.E. Warren Air Force Base, Wyoming. On March 3, 2019, Complainant was reassigned to a nonsupervisory GS-0188-07 Recreation Specialist (Youth Activities/Teen Program Coordinator) position. On August 23, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), religion (Muslim), color (Brown), disability (physical and mental), age (born in 1965), and reprisal for prior protected 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. 2021003107 2 1. On August 1, 2019, Complainant’s supervisor, the Chief of Youth Programs (Chief-1) terminated him during his probationary period, effective that day, due to lack of suitability for continued employment; and 2. Between January 16, 2018, and August 1, 2019, he was subjected to harassment by Chief-1, including, but not limited to, the following examples: limited opportunities to speak at meetings, humiliating him, ordering him to move heavy furniture and other items without assistance, being required to work in two locations and not having uninterrupted time for administrative tasks and training, disparaging remarks, not offering Complainant help, unrealistic deadlines, different terms and conditions compared to other employees regarding use of the bus, after-hours field trips, denying Complainant’s request for a split shift on Fridays, limiting his lunch hour, micromanagement, commenting on the robe Complainant wore for Ramadan, requiring Complainant to shovel snow and denying his request for an electric snow shovel, belittling his safety concerns, failing to allow him to seek treatment for an injury, directing Complainant to use the landline instead of his cell phone, cleaning duties, cancelling events, threatening to deny leave, delaying approval for a paintball activity, reviewing the waivers and registration list for the paintball activity when Chief-1 did not customarily do so for other activities, telling Complainant not to use his car when accompanying youth to the gym and that doing so violated accountability principles, asking Complainant about his doctor’s note, confiscating his keys, not providing notice of his proposed termination or the opportunity to respond, and withholding documentation related to his termination. 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 Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). For the purposes of its final decision, the Agency assumed that Complainant was a qualified individual with a disability. The Agency found that Complainant timely raised one tangible employment action, his termination. Using disparate treatment analysis, the Agency found that management articulated legitimate, nondiscriminatory reasons for terminating Complainant. Chief-1 stated that the termination was based on Complainant’s disregard for children’s safety and his inability to follow directions. Chief-1 explained that she decided to terminate Complainant after he scheduled a paintball field trip without management approval and then violated the paintball facility’s waiver policy of no children under the age of ten, raising safety concerns and exposing the Agency to liability. According to Chief-1, when she questioned Complainant about his actions after the fact, he merely responded, “my bad.” The Agency then considered whether Complainant met his burden of establishing that the legitimate, nondiscriminatory reasons were merely a pretext for discrimination. 2021003107 3 Complainant disputed the facts on which his probationary termination was based, asserting that Chief-1 shared responsibility for the underage child going on the paintball trip because Chief-1 knew that a nine-year-old was signed up for the trip and failed to advise Complainant. Complainant stated that a younger, White, Christian female coworker committed a grave safety violation by leaving an oven on over the weekend, yet the coworker was not terminated or even reprimanded. Complainant also alleged that Chief-1 hired a Recreation Specialist in June 2019 to assist him with his workload but then decided to promote the new Recreation Specialist to replace Complainant. According to Complainant, the new Recreation Specialist was friends with a parent who made false accusations about him that were cited in support of his termination. Complainant also averred that he had already completed his one-year probationary period. The Agency determined that Complainant failed to establish pretext by the preponderance of the evidence in the record. Regarding the paintball activity, although Complainant alleged that Chief-1 delayed approving the paintball activity, Chief-1 stated that she never approved the activity because Complainant did not respond to her request for additional details and learned that the activity was taking place on the day of the excursion. According to Chief-1, although the activity was not approved, the Flight Chief allowed it to go forward because it was too late to cancel. Chief-1 averred that, after a parent informed her that Complainant said to ignore the age limit in the paintball facility waiver, she directed Complainant not to take any child under the age of ten in accordance with the paintball facility’s liability policy. Chief-1 stated that the new Recreation Specialist was not Complainant’s assistant and was hired to perform her own responsibilities, and she denied promoting the Recreation Specialist to Complainant’s position. Further, Chief-1 averred that she had already initiated the termination action because of the paintball incident when the parent complained about Complainant, so the parent’s concerns were added to the pending termination. The Agency found that the preponderance of the evidence in the record established that Complainant’s employment was subject to a two-year probationary period. Although Complainant signed an outdated preemployment “Probationary Period for New Supervisors/Managers” notice advising him of a one-year probationary period, the record reflected that all civilian new hires were subject to a two-year probationary period starting November 25, 2015, and the Notification of Personnel Action for Complainant’s appointment notified him that he was subject to a two-year probationary period beginning on November 13, 2017. Turning to Complainant’s harassment allegations, the Agency found that, although Complainant belonged to statutorily protected classes, he did not establish that he was subjected to harassment based on race, religion, sex, color, disability, age, and/or reprisal. The Agency determined that Complainant did not establish by the preponderance of the evidence that the vast majority of the instances of alleged harassment occurred as alleged. The Agency found that Complainant also failed to establish that any alleged harassment was based on his membership in any protected class. For example, although Complainant alleged that Chief-1 limited his opportunities to speak at quarterly Parent Advisory Board meetings and commanded him to only read verbatim from the agenda, Chief-1 denied limiting Complainant’s opportunities to speak at the meetings and stated that she told Complainant to stick to the agenda and only discuss approved events. 2021003107 4 Complainant alleged that Chief-1 looked at him with disgust and questioned him about the robe he wore for Ramadan, despite not addressing other employees’ inappropriate or unprofessional clothing, Chief-1 stated that she commented on the robe because she was amazed by the detail and denied that she deemed the robe inappropriate or unprofessional. Although Complainant alleged Chief-1 changed his position and title on March 3, 2019, to discriminated against him, Chief-1 explained that the Agency had provided additional funding for two positions at the Youth Center Annex and directed converting Complainant’s Youth Program Coordinator position into two Recreation Specialist positions, one for Youth and one for Teens. The record reflected that Complainant was offered a choice between the positions and elected the Teen Program. Regarding Complainant’s allegation that he was denied sufficient assistance to completing program planning and other administrative work, Chief-1 explained that Child Youth Program Assistant (CYPA) staff were assigned based on the appropriate caregiver to children ratio, which was one caregiver to fifteen children for the Youth and Teens and meant that only one CYPA was needed at the Youth Center Annex. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 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 (EEO MD-110), 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”). As a preliminary matter, with disagree with Complainant’s contention that the Agency failed to develop an adequate record. EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD-110, at Chap. 6, § IV.B. Upon review, the investigative record is sufficiently thorough for the fact finder to address the ultimate issue of whether discrimination occurred. Moreover, to the extent Complainant argues that the record was incomplete because the Agency denied his Freedom of Information Act (FOIA) requests, the Commission does not have jurisdiction over the processing of FOIA requests. Instead, persons having a dispute regarding such requests should bring any appeals about the processing of his FOIA requests under the appropriate FOIA regulations. Gaines v. Dep’t of the Navy, EEOC Request No. 05970386 (June 13, 1997). 2021003107 5 Upon careful review of the Agency’s decision, the evidence of record, and the contentions on appeal, including those not specifically addressed herein, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected him to discrimination or harassment as alleged. Although Complainant asserts again on appeal that his appointment was subject to a one-year probationary period, we determine that the preponderance of the evidence in the record establishes that Complainant’s appointment was subject to a two-year probationary period, so he was not entitled to notice and an opportunity to respond to a proposed adverse action. On appeal, Complainant challenges the credibility of the parent whose complaint was cited in his notice of termination notice, but the record reflects that Chief-1 had already decided to terminate Complainant based on the paintball activity by this time. Further, although Complainant contends that Chief-1 knew that a nine-year- old was attending the paintball activity and that disciplining him amounts to “entrapment,” this is not supported by the preponderance of the evidence in the record, which reflects that Chief-1 was aware of a potential issue and directed Complainant to ensure that no underage children attended the activity. Therefore, Complainant has not established that the Agency’s legitimate, nondiscriminatory reason for his termination was pretextual. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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 2021003107 6 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. 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. 2021003107 7 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 August 17, 2022 Date