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

Equal Employment Opportunity Commission

Apr 13, 2022

Appeal No. 2020003987 (E.E.O.C. Apr. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ayana C.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2020003987 Agency No. 9Z0J18009F19 DECISION On June 2, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from a March 10, 2020 final Agency decision (FAD) on 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.2 BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Community Support Coordinator (Installation Resilience Program Specialist), GS-0301-12 with 42nd Air Base Wing in the Office of the Vice Wing Commander at the Maxwell Air Force Base in Montgomery, Alabama. The job required leadership roles as Executive Director of the Community Action Board and Chair of the Integrated Delivery System and representing them at all levels of the command, and coordinator roles for a heath and resilience exchange, and caring 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. 2 Almost two months after the Agency sent the FAD to Complainant, it realized it inadvertently left out the last five pages, which includes some findings and all appeal rights. On May 6, 2020, by FedEx, it sent the missing pages to Complainant. Accordingly, the appeal was timely filed. 2020003987 2 program. The mission of the job is to strengthen resilience3 and preparedness by using programming to address quality of life issues for Air Force personnel and family members, enhance work/life balance, and coordinate mental, physical, social, and spiritual fitness programs and so forth. On August 3, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment based on race (African-American) and disability when her first line supervisor, Vice Commander - Chief of Resilience Operations, Licensed Clinical Psychologist (“S1”) (Caucasian): 1. Without saying who said what, as her new supervisor in their first feedback meeting on June 20, 2017, said she heard before becoming her supervisor that people did not like Complainant’s leadership style, and she had communication problems. 2. Falsely claimed she failed to properly organize two major events - Wingman Day4 in October 2017 and The Project Toy Drop in December 2017, admonished her for raising concerns, and failed to credit her hard work. 3. On February 7, 2018, at an Integrated Delivery System meeting led by Complainant she asked her second line supervisor (“S2”) if he selected dates for the Spring and Fall Wingman Days, for which she had given suggested dates in December 2017, and S1 angrily yelled at her in front of her peers, accusing her of not following the new electronic procedures for scheduling programs, events, and trainings, but she and none of the attendees she spoke to had been briefed on them. 4. At a performance feedback session on February 9, 2018, without saying who said what, S1 said that at a May 2017 best practices meeting chaired by S1’s predecessor when Complainant worked for him and attended by various base agencies, he was forced to go forward without a pre-brief because Complainant did not attend, and a Major Command lead and other wing representatives reported Complainant made negative comments to the group about Maxwell Air Force Base, which would not encourage collaboration with other wings and Major Commands. 5. Complainant emailed S1 and copied five others on April 3, 2018, that at a Wingman Day Planning Meeting that morning she learned moving Wingman Day from May 11, 2018 to April 24, 2018, to combine it with the Alpha Warrior Event (a fitness event) would raise logistical and attendance problems. 3 By resilience, the Agency means mental, physical, social, and spiritual fitness. 4 A half day event with things like team sports, Zumba, physical games, child carnival games, resiliency training, healthy food cooking demonstration, food, an information fair on helping agencies and safety; speakers, an Honor Guard, and Commander’s time). 2020003987 3 6. On April 5, 2018, in a meeting in S1’s office S1, in reference to the email yelled she already agreed to the merger and was flip flopping, and when she explained she was simply making her aware of concerns, S1 yelled at her again. 7. At a Wingman Day update meeting on April 5, 2018, in S1’s office with her and Coworker 1 (Senior Master Sergeant and Wingman Day Alternate Project Officer) S1 directed her to take her daughter off the events agenda for leading Zumba and identify and use a base military person’s talent instead, and said using her family created potential liability concerns and this is not the “[Complainant] and family show”. 8. Even though on March 20, 2018, she requested all day sick leave for April 17, 2018, for an appointment, which was to follow being on annual leave for six work days through April 16, 2018, when she returned on April 18, 2018, S1 accused her of not showing up to the Wingman Day planning meeting Complainant was scheduled to lead on April 17, 2018, nor informing participants of her impending absence. 9. On April 18, 2018, S1 accused her of failing to properly request sick leave and charged her absence without leave (AWOL) for April 17, 2018, because she did not submit a leave request form. 10. While S1 withdrew the AWOL after Complainant showed S1 on April 18, 2018, the March 20, 2018 leave request form, S1 annotated Complainant’s 971 file (Supervisor’s Employee Work Folder) to reflect she took the leave without permission. 11. On May 18, 2018, after getting her annual performance rating by S1 of “Fully Successful” on all performance elements, S1 told her it was difficult to give her that rating because she was barely successful, and she was not getting a performance award.5 Following an investigation, the Agency sent Complainant a copy of a report of it and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Because she did not request a hearing, the Agency issued its final decision based on the evidence developed during the investigation pursuant to 29 C.F.R. § 1614.110(b). The Agency found no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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). 5 We reworded the Agency’s definition of Complainant’s complaint to clarify her claims and add detail. 2020003987 4 See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining 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”). The Agency found that Complainant was a qualified individual with a disability (severe depression and anxiety) which protected her under the Rehabilitation Act. We will assume the same for purposes of analysis. Harassment To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., OLC Control #EEOC-CVG-1194-5 (Mar. 8, 1994). Incidents 1 and 4 Regarding the initial feedback meeting on June 20, 2017, (incident 1) S1 stated that before supervising Complainant she was advised by Complainant’s first line supervisor and S2 that they were concerned about her time and task management and the inability of the two forums she managed to improve services for Airmen. S1 thought she shared this with Complainant, but in the context of telling her they were starting from a clean slate and were going to work together to improve, and she never used this information in rating her. Complainant stated she believed that S1 shared this negative information with her because she had an agenda to prevent her from succeeding. The Agency found this was unsubstantiated. We agree. On the February 2018 feedback session (incident 4), Complainant’s allegation and investigatory statement were garbled, and could only be understood with repeated readings. S1 stated she advised Complainant then of an identified present performance issue of not meeting deadlines. 2020003987 5 After being asked by the EEO investigator to read Complainant’s EEO investigative statement on incident 4, S1 wrote it was unclear what Complainant was referring to because the events discussed in it were in 2017, and added she already wrote in her investigative statement that she thought she discussed past leadership’s concerns with Complainant in their June 2017 feedback session. The Agency found that the evidence on this incident was at best fifty-fifty, and Complainant failed to prove it occurred. We agree. Incident 2 S1 stated that Complainant struggles with time and task management and has difficulty managing large events like Wingman Day. According to S1, for the October 2017 Wingman Day Complainant required more oversight and the assignment of additional personnel to work with her, missed multiple deadlines, and had difficulty being on time for meetings. On the Toy Drop, S1 stated Complainant again required additional follow up to get tasks completed, did not give Wing leadership updates at the times directed, and was acknowledged for her work. Complainant disagreed with S1’s assessment of her work, and discussed various problems/obstacles that occurred. The 42nd Air Base Wing Inspector General wrote one of his roles is being the eyes and ears of the Commander and giving feedback on things that affect the Wing’s good order and morale, and in this role attended multiple meetings Complainant chaired. He stated Complainant missed the mark at her meetings to the point they hindered progress. S1’s Executive Officer, who served as her executive assistant and gatekeeper, wrote that Complainant was frequently late or not show to her weekly meetings with S1 and was usually unprepared, habitually missed deadlines, and did not comply with expectations or deliverables for whatever meeting or event she was responsible for. S1’s secretary wrote a memo corroborating the Executive Officer’s account, adding Complainant had to be repeatedly reminded of recurring scheduled meetings, and was difficult to get in touch with. The Agency found that Complainant did not show S1’s assessment of her work was inaccurate. Given all this corroboration, we find Complainant did not show S1’s assessment of her performance was based on race and reprisal, rather than what S1 believed. Incidents 3 and 5 On incident 3, S1 stated she met with Complainant on February 9, 2018, not February 7, 2018, and perhaps the Executive Officer - not Complainant’s peer was there, and she did not yell at Complainant then or any other occasion. No witnesses corroborated Complainant’s claim S1 yelled at her in February 2018. On incident 5, S1 stated that at the April 5, 2018 meeting, Complainant informed her she was now in favor of moving Wingman Day from May 11, 2018 to April 24, 2018 to combine it with the Alpha Warrior Event, but the two of them previously discussed this and decided not to do this since it was too late. S1 stated that when Complainant revisited this decision on April 5, 2018, she asked Complainant questions to elicit information and they again agreed not to combine the two events. 2020003987 6 S1 stated she was frustrated Complainant was revisiting a topic already decided and was concerned she was doing so within weeks of the event, but did not yell at her. The Agency found that Complainant did not show S1 yelled at her. We agree. Incident 6 The events surrounding S1 telling Complainant to remove her daughter as leading Zumba from the events agenda are undisputed. S1 added Complainant had other family members listed as running events, S1 communicated to Complainant they not do so and told her part of her task was to generate interest and solicit volunteers from the Wing. Coworker 1, who was at the meeting, stated S1 advised Complainant her family members could not work at the Wingman Day event, Complainant politely objected, and then S1 uttered something to the effect of the alleged comment, i.e., “this is not the [Complainant’s name] and family show.” Coworker 1 stated he did not think the comment was inappropriate and it did not feel personal but aimed to reinforce they needed government employees to do conduct the events. The Agency found that Complainant did not prove the family show comment was based on her protected groups. We agree. Incidents 7 - 9 and 10 Regarding initially charging Complainant with AWOL for April 17, 2018, S1 stated that Complainant was scheduled to lead the Wingman Day planning meeting that day and learned from meeting attendees she did not show up. Complainant’s Coworker 2 (42nd Air Base Wing Violence Prevention Integrator, reports to S1) stated meeting members came to the conference room where it was scheduled only to find it occupied by another meeting, and were not notified of any changes. According to the counselor’s report, regarding meeting members not being aware of her absence, Complainant said she did not know what attendees had to do with her medical appointments, and her two project officers should have attended in her absence, but claimed they did not know where she was or that they needed to attend. S1 stated that she after learning Complainant missed the meeting, she looked into whether she was on approved leave and learned that while she requested sick leave in advance for April 17, 2018, it was never approved. S1 stated it was Complainant’s responsibility to ensure it was approved. While S1 initially believed Complainant did not request the leave, after learning she did but it was never approved, she withdrew the AWOL charge but documented she took leave without permission in Complainant’s 971 file. The Agency found Complainant did not prove incident 7 (S1 accusing Complaint of missing the meeting and not informing meeting members of her absence) was based on her protected groups. We agree. The Agency found incidents 2 - 5 did not occur, and explicitly found incidents 1 and 6 - 10 did occur. While as set out above the Agency already found no harassment on incidents 1, 6 and 7 because they were not based on Complainant’s protected groups, the Agency applied another layer of harassment analysis to these incidents that it also applied to incidents 8 - 10. 2020003987 7 Specifically, the Agency found that all these incidents appeared to have been reasonable actions taken in the course of S1 discharging her supervisory responsibilities, and they did not rise to the level of actionable harassment. Disparate Treatment To prevail under the disparate treatment theory 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Incidents 8 - 10 The Agency applied a disparate treatment analysis to incidents 8 (charged AWOL) and 10 (no performance award). S1 initially charged Complainant AWOL for April 17, 2018, because she believed Complainant did not put in for leave. The Agency found Complainant did not show this was a pretext (incident 8). We agree. S1 withdrew the charge when she learned Complainant put in for the leave, albeit it was not approved. By the same token, we find Complainant did not show S1’s explanation for annotating Complainant’s 971 - taking leave without permission on April 17, 2018, was pretextual (incident 9). In making these findings, we have considered the context of these incidents. Complainant was scheduled to lead a Wingman Day planning meeting on April 17, 2018, did not show, attendees went to the conference room it was scheduled to be only to find it occupied by another meeting, and knowing in advance she was not coming, did not cancel the meeting, nor either designate a replacement to lead it or if she did communicate it in a way it was understood. And she had a frequent prior history of being late and missing meetings with S1. Concerning incident 10, S1 stated that while she rated Complainant successful because she was working with her to improve her performance, she did not give her a performance award because her performance did not warrant it. The Agency found Complainant did not show this explanation was pretextual. Given the record, some of which has been recounted above, we find Complainant did not show S1’s assessment of her performance was based on race and reprisal, rather than what S1 believed. We need not determine, as found by the Agency, whether incidents 1 and 6 - 10 rose to the level of actionable harassment because we find that Complainant has not shown they were based on her protected groups. 2020003987 8 On appeal, Complainant submits letters by coworkers and people who interacted with her professionally or as a volunteer who state she did a good work. One recounted an instance of what she opines as S1 being rude to Complainant in front of staff. Complainant also reiterated things she previously stated. We find that all this is insufficient to meet Complainant’s burden to prove discrimination. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD. 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. 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). 2020003987 9 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. 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 April 13, 2022 Date