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

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2022002778 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virginia T.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022002778 Hearing No. 420-2021-00222X Agency No. 8G0J2000859 DECISION On April 18, 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 March 21, 2022, final order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0101-11 Sexual Assault Prevention and Response (SAPR) Specialist in the Agency’s SAPR Program, 14th Flying Training Wing, at Columbus Air Force Base in Columbus, Mississippi. As a SAPR Specialist, Complainant’s supervisor was the SAPR Program Manager. On September 16, 2019, Complainant purchased a coffee maker for the SAPR Program office with her Government Purchase Card (GPC) at a cost of $326.99. The Agency determined that this was an unauthorized purchase. Report of Investigation (ROI) at 274-81. 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. 2022002778 2 In January 2020, the Integrated Resilience Division Chief (“Division Chief”) conducted a SAPR Program assessment. In a January 8, 2020, memorandum, the Division Chief stated that the SAPR Program Manager and Complainant demonstrated an inability or unwillingness to work together and described the tension between them as obvious and having an adverse impact on the program. ROI at 282. The Division Chief stated that Complainant told her that nothing could be done to rectify the issues with the SAPR Program Manager and declined an offer for mediation. ROI at 282, 287. The Division Chief identified shortcomings of the SAPR Program and recommended that the SAPR Program Manager or Complainant be moved out of the SAPR office because of Complainant’s self-reported inability to work through the issue with the SAPR Program Manager. ROI at 282-83. On January 7-8, 2020, Complainant bcc:ed the Division Chief on two emails she sent to the SAPR Program Manager. ROI at 284-86. On January 8, 2020, the Division Chief informed the Vice Commander about the emails, stating that, although she did not feel it was her place to address Complainant’s unprofessionalism of bcc:ing the Division Chief on emails to her supervisor, she wanted to make him aware. ROI at 284. Complainant denied stating that she was unable and unwilling to work with the SAPR Program Manager. ROI at 1147. According to Complainant, she was asked if there was anything that could be done to improve the work environment and her relationship with the SAPR Program Manager, and she said no because of the lack of respect, the distrust, the lack of communication, and the hostility. ROI at 1147-48. On February 20, 2020, the Vice Commander issued Complainant a monodisciplinary Notice of Work Assignment, stating that she would be removed from her SAPR Specialist position pending an investigation of the SAPR office and would report to the 14th Comptroller Squadron to assist with special projects beginning on February 24, 2020. ROI at 294. In a memorandum for the record describing their February 20, 2020, meeting with the Civilian Personnel Officer, the Vice Commander stated that Complainant replied that it was not possible for her and the SAPR Program Manager to work together. ROI at 295. According to the Vice Commander, he gave Complainant specific instructions to remove her things from her office and have no contact with the SAPR office or participation in SAPR activities as of the close of business on February 21, 2020. Id. The Vice Commander stated that the Civilian Personnel Officer told Complainant she was looking for another permanent position for her. Id. In a March 6, 2020, memorandum for the record, a Sexual Assault Victim Advocate described Complainant entering the SAPR office on March 2, 2020, with a Unit Program Manager to address Complainant’s computer issues. ROI at 288. The Sexual Assault Victim Advocate stated that the SAPR Program Manager asked the Unit Program Manager to see where Complainant placed the label maker. Id. According to the Sexual Assault Victim Advocate, Complainant heard the SAPR Program Manager ask the question and responded with a disrespectful tone and attitude that she did not know where it was. Id. The Sexual Assault Victim Advocate described Complainant’s attitude as aggressive, unprofessional, disrespectful, and unacceptable for an Agency employee. Id. The Unit Program Manager stated she accompanied Complainant to the SAPR office on March 2, 2020, to retrieve files from Complainant’s old computer. ROI at 290. 2022002778 3 The Unit Program Manager stated that the SAPR Program Manager asked her to ask Complainant where the label maker was and that Complainant was very irritated and raised her voice, making it uncomfortable and awkward. Id. On May 19, 2020, Complainant emailed the Human Resources Office and requested to schedule an appointment to discuss disability retirement. ROI at 560. On May 21, 2020, Complainant met with a Supervisory Human Resources Specialist (HR-1) to discuss disability retirement. ROI at 514, 559. HR-1 stated that Complainant brought medical documentation to the meeting, which consisted of a Family and Medical Leave Act (FMLA) form signed by her medical provider on December 30, 2019, and labeled “Disability Purposes Only.” ROI at 514, 534-37. The documentation stated that Complainant had Post-Traumatic Stress Disorder and Major Depressive Disorder and that the symptoms of these conditions would cause episodic flare-ups that would prevent Complainant from performing her job functions. ROI at 535-36. HR-1 averred that, on June 4, 2020, she offered Complainant placement into the Civilian Personnel Office, 14th Force Support Squadron, as a GS-0201-07/09/11 Human Resources Specialist with GS-11 pay retention as a reasonable accommodation, which Complainant accepted on June 5, 2020. ROI at 515, 546, 555. According to HR-1, she explained to Complainant that part of the application for disability retirement asks about the possibility of accommodation and reassignment, and she was offered the Human Resources Specialist position in an attempt to lower her stress. ROI at 515, 523. Another Human Resources Specialist (HR-2) stated that, prior to Complainant talking with HR-1 about disability retirement, Complainant had not requested a reasonable accommodation. ROI at 864-65. According to the Civilian Personnel Officer, she was not aware of Complainant requesting a reasonable accommodation, but the reasonable accommodation process was used when Complainant inquired about disability retirement. ROI at 466. The Agency’s Air Force Instruction on the Equal Opportunity Program states that, pursuant to Office of Personnel Management procedure, whenever an employee seeks disability retirement, reassignment to a lower grade as a reasonable accommodation will be considered. ROI at 1120. Complainant stated that she requested to be placed in a less hostile, toxic environment as a reasonable accommodation in or around May 2020. ROI at 343. Complainant averred that, as a result of her request for accommodation, she was demoted to the GS-7 Human Resources Specialist position. Id. Complainant alleged that she felt compelled to accept the GS-7 position because the offer stated that, if she did not, the Agency would proceed with separation due to the absence of any other effective accommodation besides reassignment and the change to the lower grade. Id. On July 1, 2020, the Commander issued Complainant a Notice of Proposed Suspension for 5 Calendar Days for Misuse of Government Purchase Card, Unprofessional Conduct, and Failure to Follow Instructions. ROI at 253-58. The charge of Misuse of Government Purchase Card was based on Complainant’s unauthorized September 16, 2019, purchase of the coffee maker for the SAPR office for $326.99. ROI at 253. 2022002778 4 There were three specifications of Unprofessional Conduct: (1) Complainant informing the Division Chief during the January 2020 program assessment that she was unwilling to work with the SAPR Program Manager and declining the offer to mediate the issues; (2) Complainant bcc:ing the Division Chief on January 2020 emails to the SAPR Program Chief, which was unprofessional and served no legitimate purpose; and (3) Complainant raising her voice with a disrespectful tone towards the SAPR Program Manager on March 2, 2020. ROI at 254. The charge of Failure to Follow Instructions was based on Complainant going to the SAPR office and engaging with the SAPR Program Manager on March 2, 2020, after the Vice Commander instructed Complainant on February 20, 2020, not to have any contact with the SAPR office or the SAPR Program Manager after the close of business on February 21, 2020. Id. Complainant was subsequently suspended for five days, from September 25-29, 2020. ROI at 232. On November 2, 2020, Complainant requested FMLA leave, and the Agency approved her request for FMLA leave the same day. ROI at 538-42. The medical documentation, signed by Complainant’s medical provider on October 30, 2020, stated that Complainant was incapacitated “indefinitely.” ROI at 540-41. Complainant’s 12 weeks of FMLA leave ended on January 22, 2021. ROI at 542. Complainant resigned from her employment on January 25, 2021. According to the record, Complainant initiated contact with an EEO counselor on July 15, 2020. ROI at 17. On August 21, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (mental), and reprisal for prior protected EEO activity when: 1. On December 6, 2019, and June 4, 2019, Complainant requested and was denied a reasonable accommodation for her disability; 2. On June 4, 2020, Complainant was pressured to sign a document forcing her to accept a demotion from a GS-11 to a GS-7 classification; 3. On June 4, 2020, Complainant was demoted from a GS-11 to a GS-7 classification; 4. On July 1, 2020, Complainant was issued a Proposed Notice of Suspension in connection with false and misleading allegations.2 The Agency issued a final decision dismissing Complainant’s EEO complaint, and Complainant appealed. In EEOC Appeal No. 2021000370 (Feb. 9, 2021), we affirmed the Agency’s dismissal of claims (2) and (3) and reversed the Agency’s dismissal of claims (1) and (4). Regarding claims (2) and (3), we found that these claims were not properly before the Commission. Complainant had filed an appeal with the Merit Systems Protection Board (MSPB) regarding these claims. 2 During the hearing process, Complainant withdrew additional claims and additional bases for her complaint. The AJ renumbered the remaining claims. In EEOC Appeal No. 2021000370, claim (1) was listed twice as claims (H) and (O), claim (2) was listed as claim (I), claim (3) was listed as claim (K), and claim (4) was listed twice as claims (F) and (J). 2022002778 5 On September 11, 2020, an MSPB Administrative Judge issued an initial decision dismissing Complainant’s MSPB appeal without prejudice, providing Complainant until March 11, 2021, to refile her MSPB appeal. At the conclusion of the investigation into the remanded claims, 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). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on February 8, 2022. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ made mistakes in his factual findings. According to Complainant, after she met with the EEO Manager on December 10, 2019, to report that she was the victim of discrimination, the SAPR Program Manager, the Vice Commander, the Civilian Personnel Officer, and HR-1 created a hostile work environment based on Complainant’s prior EEO activity. Complainant argues that she established that she was subjected to a harassment that was sufficiently severe and pervasive to alter the terms and conditions of her employment and resulted in her involuntary termination. Complainant also contends that on December 6, 2019, and June 4, 2019, she requested and was denied a reasonable accommodation. According to Complainant, she was subjected to disparate treatment because the Approving Official was not held accountable for the unauthorized purchase of the coffee maker on Complainant’s GPC. Complainant asserts that the Agency cannot offer legitimate, nondiscriminatory reasons for its conduct. In response to Complainant’s appeal, the Agency contends that Complainant’s EEO complaint should be dismissed because she first pursued her reassignment, demotion, and harassment claims before the MSPB. The Agency also asserts that it has articulated legitimate, actions and that Complainant has provided insufficient evidence to establish pretext. According to the Agency, Complainant has not shown that the relevant Agency officials were aware of her claimed December 2019 EEO activity. The Agency argues that there is no evidence that Complainant requested a reasonable accommodation, that she provided medical documentation regarding her disability for the first time when she asked about disability retirement, and that Complainant willingly agreed to the demotion. 2022002778 6 ANALYSIS AND FINDINGS 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. (as revised, August 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). As a preliminary matter, we consider the Agency’s contention on appeal that Complainant’s EEO complaint should be dismissed. Our decision in EEOC Appeal No. 2021000370 found that claims (2) and (3), the subject of Complainant’s MSPB appeal, were not properly before the Commission and affirmed the dismissal of these claims pursuant to 29 C.F.R. § 1614.107(a)(4). As we noted in our prior decision, the MSPB AJ had dismissed Complainant’s appeal without prejudice, and the Commission will not accept appeals from MSPB dismissals without prejudice. 29 C.F.R. § 1614.303(a). There is no indication that Complainant refiled her MSPB appeal by the deadline. Accordingly, we find that claims (2) and (3) are not properly before the Commission. Although Complainant raised discrimination and harassment as affirmative defenses in her MSPB appeal, claims (1) and (4) are non-appealable actions, meaning they cannot be appealed to the MSPB due to lack of jurisdiction.3 See 5 C.F.R. § 1201.3. The MSPB generally does not have jurisdiction over non-appealable matters, even if they are connected with appealable matters. Complainant v. Inter-American Foundation, EEOC Appeal No. 0120132968 (Jan. 8, 2014). We will therefore consider the merits of claims (1) and (4). 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 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. 3 One exception is when a non-appealable matter is a proposed action that becomes final, in which case the proposal is said to “merge” with the final action. Wilson v. Dep’t of Veterans Affs., EEOC Appeal No. 0120122103 (Sept. 10, 2012). However, because only suspensions for more than 14 days are appealable to the MSPB, Complainant’s suspension was a non-appealable matter. See 5 C.F.R. § 1201.3(a)(1). 2022002778 7 Here, however, Complainant filed a motion for summary judgment and has also failed to establish such a dispute on appeal. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). “The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). Complainant alleged that she was denied a reasonable accommodation on December 6, 2019, and on June 4, 2019. However, there is no indication in the record that Complainant requested a reasonable accommodation on any date and/or was denied a reasonable accommodation on or around December 6, 2019, or June 4, 2019. There is no indication that the Agency was aware of Complainant’s disability until she inquired about disability retirement in May 2020. The record reflects that, as part of the disability retirement process, the Agency considered whether Complainant could be accommodated. Complainant stated that, in May 2020, she requested to be placed in a less hostile, toxic environment as a reasonable accommodation. When HR-1 was unable to locate any vacant GS-11 positions to which Complainant could be reassigned, she was offered placement in the developmental GS-0201-07/09/11 Human Resources Specialist position with GS-11 pay retention, and Complainant accepted the offer. When Complainant requested FMLA leave for her disability on November 2, 2020, the Agency approved her request the same day. Complainant has not established that she was denied a reasonable accommodation. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 2022002778 8 The Agency provided legitimate, nondiscriminatory reasons for issuing Complainant the Notice of Proposed Suspension: she was charged with misusing her GPC, unprofessional conduct, and failure to follow instructions. Accordingly, we consider whether Complainant can establish pretext for discrimination based on race, disability, and/or reprisal. Regarding the unauthorized purchase of the coffee maker, Complainant alleged that she was subjected to discrimination because the Approving Official approved the purchase yet was not held accountable for Complainant’s purchase. However, the documentation for the GPC is clear that all purchases must comply with applicable laws and regulations and that GPC cardholders may be found personally liable and subject to discipline for unauthorized charges. ROI at 276-81. Moreover, the Approving Official is not a proper comparator because he was a military member, not a civilian employee. Regarding the charge of unprofessional conduct, Complainant challenges the Division Chief’s statement that she indicated she was unable and unwilling to work with the SAPR Program Manager. Assuming for the purposes of summary judgment that, when asked if there was anything that could be done to improve the work environment and her relationship with the SAPR Program Manager, Complainant said no because of the lack of respect, the distrust, the lack of communication, and the hostility, this is insufficient to establish pretext. Moreover, Complainant does not deny refusing the Division Chief’s offer of mediation, bcc:ing the Division Chief on emails to the SAPR Program Manager, or going to the SAPR office and raising her office and using a disrespectful tone towards the SAPR Program Manager. Complainant also has not denied that she went to the SAPR office in March 2020 despite being instructed by the Vice Commander not to have any interaction with the SAPR office after February 21, 2020. We find that Complainant has not established that the Agency’s legitimate, nondiscriminatory reasons for issuing the Notice of Proposed Suspension were pretextual. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, including those not specifically addressed herein, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting 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. 2022002778 9 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). 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. 2022002778 10 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 alterthe 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 13, 2023 Date