EEOC Appeal 2023004497

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.

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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

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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.

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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.

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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.

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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.

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“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