Lan K.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

May 3, 2018

0120161479 (E.E.O.C. May. 3, 2018)

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

Lan K.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120161479

Agency No. 5K0M15003F16 (5K0M15003)

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated February 5, 2016, finding no discrimination
concerning her 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. For
the following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked at the Agency as a
Supervisory General Engineer, Base Civil Engineer (Fire Marshall), GS-13, 452nd Civil
Engineering Squadron, 452nd Mission Support Group, 452nd Air Mobility Wing, March Air
Reserve Base, California. On February 17, 2015, Complainant filed her complaint alleging
discrimination based on sex (female) and age (over 40) in that:

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.
0120161479

2
1. During the period of May 2012, to September 16, 2014, she was subjected to a hostile work
environment when:

a. In June 2012, the Manpower Personnel Flight Chief (MPC) abused his authority and
harassed her by personally blocking her recruitment to fill the squadron secretary position
even though there was no valid Reduction-In-Force in progress; making it harder for her
to run squadron;
b. In September 2012, to September 16, 2014, MPC abused and continues to abuse his
authority and harassed and discriminated against her by personally taking over all labor
relations matters, which he has not done with any male managers, and won’t allow her to
work with managers she worked with for years before MPC was hired;
c. On March 25, 2013, her second level supervisor (S2A), her first level supervisor (S1), the
Staff Judge Advocate (SJA), Mission Support Group, Deputy Commander A (DCA),
Mission Support Group Deputy Commander B (DCB), and MPC abused their authority
by obstructing her from carrying out her official duties as Base Civil Engineer and Fire
Marshall and usurped her Fire Chief as Authority Having Jurisdiction when directing a
mandatory firefighter physician evaluation under Air Force Policy and “NFPA”
guidelines;
d. On March 29, 2013, DCA and the Field Support Squadron Commander (FSS) failed to
take any action when they personally witnessed MPC threaten her in a meeting by
repeatedly slamming his fist on the table and yelling at her;
e. On April 2, 2013, S1 failed to take any action when she personally advised him of the
meeting on March 29, 2013, and that MPC had pounded his fist on the table and yelled at
her repeatedly in a meeting with DCA, DCB and FSS;
f. In April 2013, SJA was derelict in his duties as a Judge Advocate when she talked with
him after a meeting about all the harassment of women since MPC and S1 arrived and
SJA told her that the Commander of 4th Air Force (4AF/CC) liked MPC and nobody
should question anything that MPC did and from that time on SJA cooperated in
whatever harassment and discrimination S1 and MPC wanted accomplished;
g. On April 8, 2013, S2A, S1, SJA, and MPC abused their authority when S1 ordered her to
return a male firefighter (F1) to full duty three days before F1’s physician had cleared
him to return to duty in direct violation of AF TIG 2014 NFPA 1582, usurping her Fire
Chief as Authority Having Jurisdiction;
h. On July 11, 2013, to October 2013, S2A, S1, SJA, and MPC discriminated against her
and harassed her when they directed a Unit Climate Assessment (UCA) of her Civil
Engineering Squadron during furlough and government shutdown because one person
had complained about her, yet when 6 women complained to S1 about MPC he took no
action and did no UCA on MPC’s unit;
i. On September 10, 2013, SJA and Equal Employment Specialist (EES) violated AFI 36-
2706, “Equal Opportunity Program, Military and Civilians,” when SJA directed her to
attend EEO training without advising her that it was part of the EEO settlement
agreement SJA and S1 signed;
0120161479

3
j. On September 13, 2013, S2A, S1, SJA, and MPC violated her rights to knowledge of an
EEO complaint against her that was settled in May and refused to give her a copy of the
agreement for more than ten months;
k. On October 25, 2013, S1 directed her to violate the EEO settlement agreement that he
signed when he ordered her to schedule all overdue firefighter physicals to get back in
compliance and not advising her not to schedule the firefighter under the EEO agreement;
l. On October 28, 2013, SJA sent an email accusing her of targeting disparate treatment and
harassment of one of her firefighters for violating an EEO settlement agreement by
agreeing to have her deliberately violate Air Force Policy and OSHA law;
m. On October 28, 2013, S1 failed to take an action when she advised him that she felt that
SJA sent a threatening email, and discriminated against her when he later took an action
when MPC claimed she sent him a threatening email;
n. On February 28, 2014, MPC abused his authority and harassed her when he canceled her
recruitment of the Fire Chief position without saying anything; which cost her nearly 2
months of time restarting the recruitment to the key mission critical position;
o. On March 14, 2014, S1 continued to violate her right to a copy of the EEO settlement
agreement that he and SJA signed in May 2012, for ten months until she requested a copy
again and said she was going to seek legal counsel;
p. On April 30, 2014, to November 2014, S2B (S2A’s replacement), SJA, and S1
discriminated against her when S1 ordered an inappropriate Commander Directed
Investigation (CDI) on her unit claiming that a firefighter complained to him about her,
yet when six women including her complained to him about MPC, no CDI was ordered;
q. On June 18, 2014, S1 failed to take an action when she spoke to him in his office and
declared that she had been harassed for the past two years including an EEO complaint,
pending Office of Special Counsel investigation, a UCA, CDI with MPC personally
involved in every personnel and union issue she had; stating she couldn’t take working in
a hostile work environment anymore; and
r. On September 16, 2014, S1 treated her differently based on her gender when he advised
her that MPC had claimed he was threatened by her based on an email message and that
he had no choice but to take it seriously and Security Forces would be coming to talk to
her even though S1 failed to take an action when she complained to him that SJA and
MPC had both threatened her.

2. During the period of May 2012, to September 16, 2014, she was subjected to a hostile work
environment when:

a. In May 2012, S2C violated MSPB (Merit Systems Protection Board) Principles and
abused his power as Wing Commander when he ordered the Field Support Squadron to
hire MPC deliberately to “get rid of people” as he personally stated to Comptroller (EE1),
a female employee;
b. In June 2012, S2C abused his power as Wing Commander by personally recruiting and
management reassigning S1 as his new MSG Commander to cooperate in harassing and
discriminating against women and to protect MPC;
0120161479

4
c. In June 2012, S2C violated EE1’s right to telework as a medical accommodation even
though he had approved telework for her previously for the same medical reasons, and
had his staff harass her constantly over her leave and timecard;
d. In July 2012, S2C violated the Family Medical Leave Act when he disapproved
bereavement leave for Protocol Officer (EE2), a woman over 40 years of age, when her
husband died;
e. In July 2012, S1 discriminated against Contracting Officer (EE3), a woman over 40 years
of age, by taking away her selecting official rights and giving them to DCA without
explanation and has not done the same to any of his male managers;
f. In August 2012, S2A took command and failed to take an action to stop the harassment
of EE1 by S1, SJA, and MPC; including knowingly allowing them to force EE1 under
duress to sign an illegal non-disclosure agreement while under a doctor’s care and on
medication after the death of her son;
g. From August to September 2012, S2A and SJA failed to take an action to stop the
harassment of a woman Fire Marshall (FM) Chief (EE4) and the FM staff by MPC when
he ordered that EE4 and the FM personnel not speak to EE1 or have a retirement
ceremony for her;
h. Around August 2012, MPC abused his authority when he stated to Vice Wing
Commander that if he wanted him to get rid of EE2, he would take care of it;
i. From August to October 2012, S2A, S1, MPC, and SJA failed to take an action to protect
EE3 from a male employee who threatened to kill her;
j. From October to November 2012, S2A and MPC violated MSPB rules by management
reassigning a woman Manager (EE5) over 40 years of age from 4AF into the 452nd
Comptroller position even though she was not fully qualified for the position;
k. From September to November 2012, MPC abused his authority when he personally
promised EE4 that she would be temporarily promoted to comptroller for 120 days while
a new comptroller was being hired then terminated the temporary promotion at 60 days
because EE5 was reassigned;
l. On April 9, 2013, S2A, S1, and MPC abused their authority by directing the Fire Chief to
place the firefighter requiring a firefighter physician evaluation on administrative leave
and never provided a document approving that administrative leave (thereby forcing the
Fire Chief, Deputy Fire Chief and timekeeper to violate AFRC 36-803, Time and
Attendance Controls);
m. In June 2013, MPC abused his authority and violated Complainant’s right to privacy (in
violation of Privacy Act) when he publicly told the coworkers and employees of LROF
that she was mad at him because he gave her less time off award than he gave anyone
else;
n. On September 24, 2013, SJA was derelict in his duties when he was notified and
provided a copy of the CA-2 Workers’ Compensation claim for disability submitted by
the firefighter under the EEO agreement who was returned to duty with no restrictions
following spinal fusion surgery, but failed to take an action to address a firefighter on
duty with no restrictions yet SJA knew he had filed for disability;
0120161479

5
o. On October 28, 2013, MPC abused his authority directing the Fire Chief to reschedule the
annual firefighter physical for the firefighter under the EEO settlement agreement to
September 2014, in direct violation of Air Force TIG 2014 NFPA 1582 and OSHA law;
p. From December 2013, to January 2014, S2B and S1 disregarded the current civilian
recognition program after failing to have a quarterly award in all of 2012, then deciding
to name Civilian of the Year winners at the ineligible GS-13 level with S1 naming MPC
as Civilian of the Year when she worked the entire year and had a better performance;
q. In January 2014, S1 and MPC violated the hardship return rights of Human Resources
Specialist (HRS1) when MPC ordered a male employee (EE6) to cancel HRS1’s return
already approved by USAFE to care for her mother and delayed her return by several
months;
r. In February 2014, S1 and MPC discriminated against HRS1 who was the GS-12 Chief of
Staffing by putting her in an open cubicle with her employees and leaving another GS-12
male manager reporting to MPC in her private office for several months;
s. In June 2014, MPC abused his authority to issue VERA/VSIP (Voluntary Early
Retirement Authority/Voluntary Separation Incentive Payments) to discriminate and
retaliate against three female employees for cooperating in a CDI ordered by S2B,
investigating a complaint filed by EE6 against MPC three months earlier; and
t. On June 24, 2014, MPC abused his authority and harassed and bullied her and an
identified female Occupational Health Officer (OHO) by refusing to agree to have a
medical group representative or physician attend the I&I bargaining with the union on
NFPA 1582 they were preparing for and refusing to listen to the identified OHO about
issues negotiable with the union.

On May 15, 2015, the Agency issued its notice accepting claims 1a - r but dismissing claims 2a -
t for failure to state a claim pursuant to § 1614.107(a)(1). After completion of the investigation
of the accepted claims, Complainant was given a notice to request an EEOC Administrative
Judge (AJ) hearing but failed to timely request a hearing. Complainant does not dispute this.
The Agency issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut. On appeal,
Complainant does not file an appeal brief.

ANALYSIS AND FINDINGS

Initially, we find that the Agency properly dismissed claims 2a - t for failure to state a claim
pursuant to § 1614.107(a)(1). Upon review, we find that the actions therein were directed toward
other employees and not toward Complainant and/or there is no evidence that she was aggrieved
regarding the Agency’s actions therein. Furthermore, on appeal, Complainant does not contest
the Agency’s dismissal of claims 2a – t.

Turning to claims 1a – r, as this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the
Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining
0120161479

6
that the de novo standard of review "requires that the Commission examine the record without
regard to the factual and legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time period at issue, Complainant was
employed as the Base Civil Engineer/Fire Marshall, GS-13. Complainant indicated that in April
2012, MPC was hired as the Manpower Personnel Flight Chief and since then, she had been
subjected to a hostile work environment. The MPC indicated that as Chief of Manpower and
Personnel, he provided advisory service, including labor issues, to all levels of management and
at the relevant time, the facility was downsizing due to personnel position cuts in the Air Reserve
Command.

S2B stated that Complainant was technically competent but lacked people skills in that several
employees filed grievances against Complainant. Management settled one grievance filed
against her. Complainant does not dispute this. MPC stated that an Agency employee filed an
EEO complaint against Complainant and a finding of discrimination was entered. Complainant
thus was required to attend sensitivity training. Complainant does not dispute this.

In claims 1a and n, Complainant indicated that MPC blocked or canceled recruitment actions
within her unit. MPC indicated that since he was hired at the facility in April 2012, there was a
hiring freeze because of downsizing the 4th Air Force; thus, he did not support Complainant’s
proposal to realign or upgrade positions in her unit. Regarding Complainant’s recruitment for
Fire Chief position, MPC stated that he was waiting for the position to be reclassified and it was
not canceled. Complainant acknowledged that on July 21, 2014, she received a certificate to
select a candidate for the position at issue and she ultimately selected an individual for the Fire
Chief in her unit.

Regarding claim 1b, MPC denied he obstructed Complainant’s carrying out her official duties.
Specifically, MPC indicated that as he was the chief negotiator regarding all labor matters and
grievances, he met with the union on an ongoing basis. He stated that at the relevant time, he
advised Complainant to speak with the union concerning grievances concerning her subordinate
employees to resolve the issues at the lowest level possible but she choose not to do so; and he
was later seeking her input on level three grievances regarding her subordinates. DCB indicated
that MPC’s duties involved working with union representative to resolve labor issues and trying
to protect Complainant from her subordinates’ grievances filed against her.

Regarding claims 1c and g, management indicated that at the relevant time, Complainant and her
Fire Chief initially allowed F1 to return to duty after his medical leave of absence and then later
they changed their mind and decided on their own that F1 was not qualified for duty although he
was released by his physicians to return to his duties.
0120161479

7
F1 eventually initiated an EEO process which was resolved by an EEO settlement agreement.
Complainant does not dispute this. Management also indicated that despite Complainant’s
claim, described in claim 1c, F1 provided extensive medical documents and physicals which
were counted as his required annual physical for 2013.

In claims 1d and e, Complainant indicated that management failed to take appropriate action
after she reported instances of harassment she sustained at work. MPC denied he slammed or
pounded his fist on the table or yelled at Complainant during the meeting at issue. FSS indicated
that at the relevant time: both MPC and Complainant spoke in raised voices and interrupted each
other during the meeting; MPC’s hand contacted the table but it was not repeated or considered
pounding or slamming; and MPC did not yell at Complainant.

Regarding claim 1f, SJA denied any conversation with Complainant as she alleged.

Regarding claims 1m and r, SJA denied sending Complainant any type of threatening emails.
MPC indicated that on September 12, 2014, he sent his email to Complainant concerning her
issuance of proposed suspension to one of her subordinates. Complainant has not supplied the
email that was allegedly threatening. The record indicates that in response, on September 15,
2014, Complainant sent him her email indicating “I will be taking action on this email and every
other issue I have with you over the past 2 years.” MPC stated that he took Complainant’s
foregoing email as a threat and informed S1 of such. S1 then investigated the incident via
security and no action was taken against Complainant.

Regarding claim 1q, S1 indicated that at the relevant time, Complainant came to him and told
him how frustrated she was about work matters but she never raised any issues of harassment.

Claims 1i, j, k, l, and o, concern the incidents involving an EEO settlement agreement of an EEO
complaint naming her as the alleged discriminating individual. S1 and MPC indicated that the
Agency entered into an EEO settlement agreement to resolve F1’s EEO matter on May 21, 2013.
F1 was Complainant’s subordinate. MPC indicated that, as instructed, he provided a copy of the
settlement agreement to Complainant. S1 acknowledged that he ordered Complainant to have all
firefighters’ overdue physicals in compliance as required.

In claims 1h and p, Complainant indicated that she was subjected to work investigations.
Management indicated that at the relevant time, S1 directed the UCA to assess the climate in
Complainant’s organization and to seek improvements for the climate; and the results of the
UCA were inconclusive since there was poor participation. S1 indicated that he also ordered the
CDI due to a number of anonymous complaints from members of Complainant’s organization
stating she fostered a hostile work environment. Management denied harassing Complainant as
she alleged.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Regarding her claim of harassment,
we find that Complainant failed to establish the severity of the conduct in question or that it was
0120161479

8
related to any protected basis of discrimination. After a review of the record, we find that
Complainant failed to show that there were any similarly situated employees not in her protected
groups who were treated differently under similar circumstances. Based on the foregoing, we
find that Complainant has failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination regarding claims 1a – r and
dismissing claims 2a – t is AFFIRMED.

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.
0120161479

9
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.

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

May 3, 2018
Date