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

Equal Employment Opportunity Commission

Feb 8, 2023

Appeal No. 2022002573 (E.E.O.C. Feb. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tim H.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022002573 Hearing No. 510-2022-00040X Agency No. 5E0J16002 DECISION On April 1, 2022, 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 27, 2022, final order 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Airplane Pilot (Simulator Instructor), GS-2181-12, at the Agency’s 47th Flying Training Wing in Laughlin Air Force Base, Texas. On April 11, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII. The Agency ultimately accepted the claims for investigation and framed his allegations in the following manner: 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. 2022002573 2 1. Was Complainant subjected to a hostile work environment on the basis of reprisal by Commander, 47th Operations Group, when he directed a Commander Directed Investigation (CDI) conducted by Major Bioengineering Flight Command, in March 2015 in which Complainant was the target of the investigation? 2. Was Complainant subjected to a hostile work environment on the basis of reprisal by Chief, 47th Flying Training Wing/Civilian Personnel Officer, GS-0201-12; Director, 47th Student Squadron (STUS)/DA, GS-2181-13; and Airplane Pilot (T-38 Simulator Instructor), GS-2181-12, on or about July 27, 2015, when: a. An “ad hoc” meeting was conducted in which the Agency decertified Complainant as an Academic and Simulator Instructor; b. Complainant’s work hours were changed without his approval, denying proper change for Complainant’s wife with a serious health condition; c. Complainant was denied his “right to work” and the Agency intentionally denied retraining; and d. During an “investigative interview,” Complainant was accused of some “dubious” allegations? 3. Was Complainant subjected to harassment/hostile work environment on the basis of reprisal when on or about September 2, 2015, and unknown coworker sent Complainant an email attempting to influence him to “commit perjury” by recounting the allegations in Complainant’s prior complaint? 4. Was Complainant subjected to a hostile work environment on the basis of reprisal by Commander, 47th Student Squadron (47 STUS) when: a. On or about October 28, 2015, 47 STUS Commander permitted Complainant’s coworker, Civilian Simulator Instructor Pilot-1, GS-2181-12, to send a “threatening” email via official government email without the Simulator Instructor Pilot-1 receiving any disciplinary action by the Agency; b. On or about November 17, 2015, via email, 47 STUS Commander advised Complainant through Civilian Simulator Instructor Pilot-2, GS-2181-12, not to visit the work center while “requesting” Family and Medical Leave Act (FMLA); and c. On or about December 17, 2015, 47 STUS Commander authorized Complainant’s first level supervisor to hand a “Notice of Proposal 12-Day Suspension” to Complainant’s coworker and authorized power of attorney? 2022002573 3 5. Was Complainant subjected to a hostile work environment on the basis of reprisal by 47th Student Squadron Director when: a. On or about January 2016, 47 STUS Director sent an undated email - Memorandum for Record (MFR) to Complainant’s home address rescinding the proposed 12-day suspension and threatening Complainant with future disciplinary action to be issued at a later date for unspecified alleged misconduct by Complainant; and b. On or about February 1, 2016, at or near Building 328, Room 253, Laughlin Air Force Base, 47 STUS Director denied Complainant his “right to work” after a lengthy sick leave period and ordered Complainant to “leave the work center immediately” because of his wife’s medical condition which might “create liability issues for the wing.” 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). Complainant timely requested a hearing. In accordance with Complainant’s request, the Commission assigned an AJ to adjudicate the matter. Following discovery, the Agency filed a motion for a decision without a hearing, urging the AJ to issue a decision in its favor, as the undisputed record showed that Complainant had not been subjected to discrimination. In so arguing, the Agency maintained that management had legitimate, nondiscriminatory reasons for taking the alleged actions. Specifically, with regard to claim 1, the Agency explained that 47th Operations Group Commander initiated a CDI because several individuals, including Complainant, had raised concerns about the work environment. According to the Agency, the focus of the CDI was “general personnel complaints” and not specific to any particular individual. The Agency emphasized that the CDI ultimately found all allegations to be unsubstantiated. For claim 2, the Agency maintained that the record showed that Complainant was decertified because he no longer qualified to be a Simulator Instructor due to his extended absence and needed to requalify. The Agency explained that T-38 Simulator Instructor had originally planned to change Complainant’s work hours from 9:00 am to 5:00 pm during the retraining period, but ultimately set Complainant’s work hours from 12:00 pm to 8:00 pm to allow Complainant to take care of his ill wife. While the Agency noted that Complainant had claimed that he had been denied retraining, the Agency emphasized that the retraining requirement was an automatic requirement and that Complainant never requested retraining. As for Complainant’s characterization of the allegations against him as “dubious”, the Agency noted that the allegations concerned reports about the work environment, which management investigated and ultimately found to be unsubstantiated. 2022002573 4 With regard to claim 3, the Agency explained that after Complainant reported receiving an anonymous email advising him that he could avoid getting fired by blaming others for complaints he made, management initiated an inquiry into the email. Ultimately, management as unable to determine who had sent the email. For claim 4a, the Agency noted that Complainant’s allegation of discrimination concerned an email from a colleague that he was carbon copied on. In the email, Complainant’s colleague informed T-38 Simulator Instructor that he intended to file an EEO complaint against another employee. While the Agency acknowledged that Complainant found the email to be threatening, the Agency argued that the letter was simply an annoyance and emphasized that management did not instruct Complainant’s colleague to send the email. Regarding claim 4b, the Agency explained that management advised Complainant not to visit the workplace while on FMLA because management was concerned about the potential liability of Complainant being at the work center while his wife was seriously ill at home. The Agency also noted that management had concerns regarding Complainant’s presence at the workplace because Complainant had previously told management that his presence at the office could exacerbate his medical condition and could be potentially fatal to him. As for claim 4c, the Agency explained that management proposed to suspend Complainant for 12 days because he had physically struck students during formal flying training, engaged in conduct unbecoming by using inappropriate language in front of students, and failed to properly perform his duties properly. While the Agency acknowledged that Complainant disagreed with the merits of the proposal, the Agency emphasized that his disagreement alone was not evidence of discrimination. Finally, for claim 5a, the Agency noted that Complainant subjectively perceived the memorandum rescinding the proposed suspension as a threat because the memorandum contained a warning that future discipline could be imposed and was based on similar allegations that had been leveled against him in the past. The Agency ultimately argued that Complainant’s mere annoyance that the proposed suspension was rescinded was not evidence of discrimination. As for claim 5b, the Agency reiterated the same arguments that it had made in claim 2. Complainant timely opposed the Agency’s motion. In opposing the Agency’s motion, Complainant largely relied on the affidavit from his coworker, whom he had granted power of attorney to represent him in his interactions with management. Complainant’s coworker provided statements supporting Complainant’s contention that the CDI was retaliatory because management had initiated the CDI after Complainant filed an EEO complaint. Complainant’s coworker also expressed his personal belief that Complainant’s decertification was not truly based on Complainant’s qualifications, as management waited over a year to reveal the reasons. Lastly, Complainant’s coworker noted that he too received many harsh critiques from students, but management never stripped him of his instructor privileges or investigated him. Given these factors, Complainant maintained that a decision without a hearing was improper. In response to Complainant’s opposition, the Agency filed a response largely reiterating its prior arguments. 2022002573 5 Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 11, 2018, motion for a decision without a hearing and issued a succinct decision without a hearing on January 25, 2022. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. Complainant did not submit any contentions in support of his appeal. The Agency opposes the appeal on the grounds that it previously raised and maintains that it had legitimate, nondiscriminatory reasons for taking the alleged actions. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we find that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. In reaching this conclusion, we note that Complainant did not offer any arguments on appeal as to why the AJ erred in finding no discrimination. As our de novo review of the record reveals no basis to find discrimination, we shall AFFIRM the Agency’s final order. 2022002573 6 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. 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). 2022002573 7 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 February 8, 2023 Date