2023004497•EEOC Appeal 2023004497
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Phyllis G.,1 Complainant, v. Troy E. Meink, Secretary, Department of the Air Force, Agency. Appeal No. 2023004497 Agency Nos. 7A0J1900055F23-2, 8Z0J2100509 Hearing Nos. 451-2019-00236X, 450-2022-00161X DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s July 23, 2023 final order concerning an equal employment opportunity (EEO) complaint of 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. For the reasons that follow, we AFFIRM the Agency’s final order. 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.
2023004497 2 At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Safety and Occupational Health Specialist, GS-0018-11, at the Agency’s 502 Air Base Wing Safety Office in Fort Sam Houston, Texas. Beginning on December 27, 2018, Complainant filed two EEO complaints, with multiple amendments, totaling 25 claims spanning from September 2018 through May 2021, alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of race (American Indian/Hispanic), national origin (American Indian/Hispanic), sex (female), color (Brown), disability (mental), age (over 40), and in reprisal for prior protected EEO activity. The claims included proposed suspensions and reprimands, settlement agreement negotiations, detail opportunities, transfer requests, non-selections, denied reasonable accommodation requests and improper medical disclosure, denied leave requests, and an overall hostile work environment. After the investigations into the complaints, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a bench decision in favor of the Agency finding that Complainant was not subjected to discrimination. In the decision, the AJ first addressed Complainant’s initial complaint. Regarding Complainant’s proposed suspension, the AJ found the Agency’s explanation that Complainant was rude to people in the office was a legitimate, nondiscriminatory reason for the Agency’s actions. The AJ found that the Agency was not required to enter into a settlement agreement with Complainant. Similarly, the AJ found Complainant was not aggrieved when she was given a deadline for work, chose to go to work instead of taking leave, and was accused of removing her work laptop from the office. As for the detail position, the AJ found that Complainant was not entitled to a detail to a higher position. Regarding Complainant’s transfer request allegation in her first amendment of the complaint, management affirmed that two offices did not have positions available and another office did not have enough work to justify adding an employee. The AJ found that Complainant failed to state a claim when a manager did not recuse himself from making a disciplinary decision; management did not respond to Complainant’s written communication to them about late reporting of job-related duties; and
2023004497 3 Complainant was not allowed to use the office that the designated team lead was allowed to use. With respect to the second amendment of the complaint, the AJ determined that taken together, the entirety of the claims failed to state a claim, as Complainant was not aggrieved by any of the Agency actions. The AJ further determined that to the extent the Agency needed to present legitimate, nondiscriminatory reasons for its actions, it did so, and Complainant failed to present evidence showing that the Agency’s proffered reasons were pretext for unlawful discrimination. The AJ next addressed the third amendment to the complaint, which involved two non-selections and a letter of reprimand, finding that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory explanations. For the non-selections, Complainant did not establish that her qualifications were demonstrably superior to the ultimate selectees. Specifically, the GS-14 selectee had multiple years of prior experience with the Air Force safety program. Regarding the GS-11 position, the selectee was required to teach motorcycle courses and Complainant lacked the requisite rider experience, which would take approximately 18 months to obtain. As for the reprimand, Complainant received a letter of reprimand for not properly following leave procedures when she went directly home following an off-site training instead of returning to the office. The AJ found Complainant’s written rebuttal and testimony to be unpersuasive on the matter, and that Complainant failed to rebut the assertion that other comparators informed management of their status in similar circumstances. As for the fourth amendment to the complaint, the AJ found that Complainant was not entitled to a transfer for a temporary detail and was not subjected to adverse treatment. While the AJ noted issues with management testimony, the AJ found that the Agency provided legitimate, nondiscriminatory reasons for not selecting Complainant for three positions. Specifically, one of the selectees had previous and recent experience as an enlisted airman at one of the locations; another selectee moved laterally; and the final selectee had previous experience at the location at issue. With respect to Complainant’s reasonable accommodation request, the AJ found that Complainant’s first and only requested accommodation was a reassignment, which the AJ noted is the accommodation of last resort.
2023004497 4 The AJ found that Complainant failed to provide the staffing office with the information needed to process her request. In terms of the medical disclosure allegation, the AJ found that the inquiry into Complainant’s disability was job- related and required to determine what accommodation Complainant sought. Complainant’s advanced sick leave request was denied because she failed to present evidence that she was prepared to return to work. The AJ determined that Complainant’s allegation concerning the Agency’s EEO office refusing to respond regarding the processing of her complaint constituted a collateral attack on the EEO process and failed to state a claim. Moving to Complainant’s second complaint, which involved non-selections and allegations that management failed to advance Complainant’s career, the AJ found that Complainant failed to state a claim. Specifically, the AJ found that Complainant was ineligible for the positions because Complainant had retired and the position was only open to internal candidates. Based on his findings, the AJ concluded that Complainant failed to establish by a preponderance of the evidence that the Agency subjected Complainant to discrimination, retaliation, or harassment. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (internal citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 9, at § VI.B. (Aug. 5, 2015). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Id. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. Id. EEO-MD-110, Chap. 9 § VI.C, further provides that on appeal to the Commission, the burden is squarely on the party challenging the AJ’s decision to demonstrate that the AJ’s factual determinations are not supported by substantial evidence. See id.
2023004497 5 In this case, this means that Complainant has the burden of pointing out where and why the AJ’s findings are not supported by substantial evidence. Cf. id. (pointing out that “[t]he appeals statements of the parties, both supporting and opposing the [AJ’s] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ’s] factual determinations are supported by substantial evidence”). While Complainant disagrees with the AJ’s decision, Complainant does not present objective evidence to demonstrate that the AJ's credibility determinations were incorrect. We find that substantial record evidence supports that Complainant failed to show that the alleged conduct was based on discriminatory or retaliatory animus. Moreover, we find that the alleged incidents in the complaints were not objectively severe or pervasive to establish a discriminatory hostile work environment, and the conduct was not sufficiently material to deter protected activity. Moreover, substantial record evidence demonstrates that Complainant has not shown that the Agency's explanation for its actions was pretext for discrimination or reprisal. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1125) 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 Sector (OFS) within thirty (30) calendar days of receipt of this decision.
2023004497 6 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 their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Sector, 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 OFS 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 their 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(f). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124) 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 their full name and official title. Failure to do so may result in the dismissal of your case in court.
2023004497 7 “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: T. Gimbrere __________ Acting Director's signature T. Gimbrere, Acting Director Office of Federal Sector September 29, 2026 Date
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