Ceil W.,1 Complainant,v.Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jan 10, 2020

Appeal No. 2019002670 (E.E.O.C. Jan. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ceil W.,1
Complainant,

v.

Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.

Appeal No. 2019002670

Hearing No. 550-2015-00055X

Agency No. 5XL1L14004

DECISION

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 November 1, 2018, 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., 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 following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist,
GS-1102-12, at the Agency’s facility at Travis Air Force Base, California. On March 21, 2014,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of her race (African-American), disability (mental – bipolar disorder II), and age (60) 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.
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1. Between August 2012 and September 2013, the squadron commander (S1) denied
her request to work compensatory time and complete end-of-year projects but
approved counterparts’ requests;
2. Between February 2013 and October 2013, S1 disciplined her for alleged
misconduct but did not discipline co-workers for similar behavior;
3. Between March 2013 and December 2013, S1 initiated investigations regarding her
conduct, collected statements from her co-workers and filed negative
documentation in her AF Form 971;
4. Between June 2013 and October 2013, S1 increased his oversight of her work
performance;
5. On or about October 20, 2013, S1 removed her from her GS-11 service contract
responsibilities and assigned her work to a GS-9 co-worker;
6. On or about October 20, 2013, S1 did not initiate a Commander Directed
Investigation (CDI) into a co-worker repeatedly making the racially offensive
statement “[a] black Jesus, oh my god, my husband would kill me!” regarding a
black nativity scene in the African Expressions Christmas catalog;
7. On October 30, 2013, S1 made the statement “20-30 years of experience in
contracting is equal to 5 years if you haven’t kept up to date with contracting” to
the entire flight when she was the only employee present with over 20 years
experience;
8. On October 31, 2013, S1 told her that she was not performing at her grade level
and that her work was substandard;
9. On October 21, 2013, S1 told her that he did not hire her for a GS-12 procurement
analyst position because her resume was not up-to-date, and he kept the job
announcement open to be able to hire a co-worker who was going to become
eligible to promote to Grade GS-12 in March 2014, and the USA Jobs
Announcement #5X-AFPC-859025-813597-BKO informed Complainant that
someone else was selected for the position;
10. On October 31, 2013, S1 denied her request to attend training but approved co-
workers’ requests;
11. On October 31, 2013, S1 denied her request to transfer to a different flight but
approved the requests of co-workers;
12. On November 1, 2013, S1 required her to email management immediately upon
arrival to work, notify management when she leaved the office for meetings, lunch,
or any other time she leaves the building, but did not require the same of co-
workers;
13. On or about November 1, 2013, S1 assigned her less favorable work assignments;
14. Between November 5, 2013 and December 12, 2013, S1 initiated a CDI into
allegations made against her by a co-worker;
15. On January 22, 2014, S1 retaliated against her by allowing a co-worker to submit
an erroneous computer report to the squadron; and
16. On a continuing basis, S1 informed her co-workers that she has a mental disorder
and led them to believe the she is prone to workplace violence.

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Complainant further alleged that the Agency subjected her to a hostile work environment on the
basis of her disability and in reprisal for prior protected EEO activity when:

1. On or about May 24, 2014, the technical sergeant (T1) wrote an inaccurate
memorandum for record (MFR) regarding an inspection of her contract work;
2. On or about May 27, 2014, the deputy squadron commander confronted her
regarding T1’s inspection MFR in front of her co-workers and stated loudly “I
thought you told me all these years that you were a good contract specialist! While
you were on leave we pulled your contract files and [T1] found multiple problems
with your files. I need you to respond to this write up! It doesn’t have to be now but
before you leave!”
3. On or about May 29, 2014, she discovered that S1’s secretary had a file on her
computer desktop labeled “[Complainant] mental stability”; and
4. On April 30, 2014, she was retaliated against for not having been found to have
committed sexual harassment by a CDI and she was issued a 10-day unpaid
suspension.

At the conclusion of the investigation, 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.
The AJ assigned to the case determined that the complaint did not warrant a hearing and issued a
decision without a hearing on September 19, 2018. 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.

ANALYSIS AND FINDINGS

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. (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).

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.
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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 fact-finder 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 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.

Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other
party. Failure to file within the time period will result in dismissal of your request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. Any supporting documentation must be submitted with your 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).
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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

January 10, 2020
Date