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

Equal Employment Opportunity Commission

Apr 5, 2022

Appeal No. 2020005236 (E.E.O.C. Apr. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cheryll K.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2020005236 Agency No. U3R118001F20 DECISION On September 10, 2020, 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 August 6, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Fire Protection Inspector, GS-08 at the Agency’s Fire Department at Homestead Air Reserve Base, in Florida. Complainant indicated that she was the only female in her department and, she believed, the only person who had engaged in prior EEO activity. On November 16, 2017, Complainant texted the Base Engineer, her third-line supervisor (Base Engineer) requesting the after-hours phone number for the EEO office. Base Engineer interacted with Complainant about once a month. He thought he received the text message in error and did not respond. The next day, Complainant informed Base Engineer that she had found the number. Base Engineer figured the issue was resolved. Investigative File [IF] at 164 and 167. 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 2020005236 The Assistant Chief of Fire Prevention, Complainant’s first-line supervisor (Supervisor) provided the EEO contact number to Complainant. IF at 99 and 113-118. Complainant felt like Base Engineer was trying to make the EEO process difficult. IF at 84. Management had found prophylactics in the office of the Assistant Chief of Operations (Assistant Chief). There were also rumors that Complainant and Assistant Chief were in an inappropriate and unprofessional relationship. According to Supervisor, on several occasions, people had questioned him about Complainant’s relationship with Assistant Chief after noticing them together during duty hours at the on-base coffee shop for extended hours, throughout the day, at lunch, and engaging in other activities such as racquetball. IF at 36. As a result, Complainant’s fourth-line supervisor (Colonel) ordered that a Commander-Directed Investigation (CDI) be conducted. Complainant was interviewed as part of the investigation, but she was not the one being investigated because the allegation of unprofessional conduct was against Assistant Chief, not Complainant. The claims were, however, unsubstantiated. IF at 100-01, 153, and 165. According to Complainant, the Agency never apologized or notified the staff of the results of the CDI. She felt hurt and targeted because she was the only female in the department and received a promotion. IF at 86-87. Complainant was temporarily assigned “contractor” duties until the end of the fiscal year when an Assistant Chief position was vacant for over six months. Supervisor stated that the duties, which were not part of Complainant’s job functions, were originally supposed to be handled by another office but were assigned to Complainant due to the vacancy. Supervisor decided to assume those duties before the fiscal year ended because a contractor (Contractor) complained about Complainant and falsely accused her of having an improper relationship with one of the Contractor’s employees. Supervisor asserted that Complainant was upset about the rumor, the Contracting Company was threatening to sue, and Supervisor felt the decision to assume the responsibilities sooner was in the best interest of the installation. IF at 101-2, and 105. According to Complainant, Supervisor made the decision to remove the responsibilities earlier than planned due to the allegation. IF at 88. Supervisor instructed Complainant to change her uniform from wearing a white shirt to a blue shirt. Supervisor gave the instruction to comply with the Agency’s Uniform and Grooming Standards for Civilian Fire Emergency Services Personnel. IF at 109-112. The Fire Chief updated the uniform requirement in January 2017 to comply with the Airforce Instructions (AFI). Supervisor averred that all bargaining unit employees, GS-08s and below, including Complainant, wore blue shirts. IF at 107. According to Complainant, Supervisor failed to show her a copy of the changed AFI. Complainant also felt the decision was unjustified because once she changed to a blue shirt, she had to show up to daily roll call and was the only employee wearing a blue shirt. IF at 89-90. On January 31, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 3 2020005236 1. On November 16, 2017, Base Engineer sent her the Patrick Air Force Base (AFB) after- hours EEO number to file a complaint; 2. On June 6, 2017, Colonel ordered a CDI into allegations of an unprofessional and inappropriate relationship between Complainant and Assistant Chief; 3. On June 28, 2017, Supervisor relieved her of contracting duties, allegedly because of Contractor’s allegations; and 4. On January 18, 2018, Supervisor ordered Complainant to change her uniform from a white shirt to a blue shirt. The Agency accepted the complaint for investigation. 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 but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not submit an Appeal Statement. On appeal, the Agency asserts that Complainant failed to meet her burden of proving discrimination under any reasonable interpretation of the facts and conclusions of law contained in the record. According to the Agency, there is no evidence to support a prima facie case with respect to any of Complainant’s allegations. In the alternative, the Agency asserts, it articulated legitimate non-discriminatory reasons for its actions. The Agency states that Complainant failed to produce any evidence that its arguments were pretext or that the alleged actions were discriminatory. Therefore, the Agency requests that the Commission affirm its final decision. STANDARD OF REVIEW 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, at Chap. 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”). 4 2020005236 ANALYSIS AND FINDINGS Unlawful Retaliation - Claim 1 We find that Complainant did not establish a prima facie case of reprisal. Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a time and in such manner that a retaliatory motive may be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005); Dominica H. v. Dep't of Health and Human Servs., EEOC No. 0120150971 (Nov. 22, 2017). The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 § II.B(2) (Aug. 25, 2016). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). The record is devoid of any evidence that Base Engineer or any other agency official provided Complainant with an incorrect after hours EEO office contact telephone number as alleged. The record indicated that Supervisor provided Complainant with the EEO office number. We note that Complainant sent the Base Engineer a text requesting the EEO office contact information. Although the Base Engineer thought the text was in error, we note that he should have responded to Complainant’s request for the EEO contact information. However, the next day, Complainant texted Base Engineer back and informed him she got the number. Therefore, Base Engineer presumed that the issue was resolved. Although Complainant felt that Base Engineer was making the EEO process difficult, she has provided no evidence that management dissuaded her from participating in the EEO process as she was provided with the EEO office number. See Brown C. v. Dep’t of Veterans Affs., EEOC Appeal No. 2020004265 (Feb. 7, 2022). Disparate Treatment - Claim 4 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 5 2020005236 The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, in claim 4, Supervisor stated that he instructed Complainant to change her uniform from wearing a white shirt to a blue shirt to comply with the Agency’s Uniform and Grooming Standards for Civilian Fire Emergency Services Personnel. Included in the record are applicable sections of AFI 32-2006, dated August 29, 2013, and the Memorandum of Agreement regarding Uniform and Grooming dated March 2016. IF at 109-10, 111-12. The Agency has articulated a legitimate non- discriminatory reason for the alleged action. We next turn to Complainant to show pretext. We find no evidence of pretext. Complainant did not refute Supervisor’s statement that all bargaining unit employees, including Complainant, wore blue shirts. The record also reflects that 43 employees wore blue shirts and six employees wore white shirts. IF at 107. Therefore, there is no proof that Complainant was asked to change her uniform based on discriminatory animus. Such proof can include evidence of discriminatory statements or past personal treatment, comparative or statistical data showing differences, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Complainant failed to provide any such evidence. Harassment- Claims 2 and 3 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). 6 2020005236 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., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Under the standards set forth in Harris, Complainant's claim of a hostile work environment must fail with regard to claims 1 and 4. A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of these actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Regarding claim 3, Complainant felt disrespected and unhappy when Supervisor reassigned her contractor duties. However, Supervisor explained that he felt the decision to assume the contractor responsibilities sooner was in the best interest of the installation due to accusations by a Contractor that Complainant had an improper relationship with one of his employees; and the threat of a lawsuit by the Contractor. Complainant, herself, stated that Supervisor made the decision due to the Contractor’s allegation. We find that Supervisor’s action was not based on Complainant’s membership in a protected class. With respect to claim 2, Complainant felt targeted and hurt when management interviewed her as part of a CDI. Management, however, explained that Colonel ordered the CDI based on the allegations against Assistant Chief due to management’s discovery of his prophylactics. There was no indication that the CDI was ordered against Complainant or due to her protected bases. Based on management’s explanations, we find that the alleged incidents in claims 2 and 3 are workplace occurrences that management had to address. These incidents are neither severe nor pervasive; and they do not constitute actionable harassment. See Complainant v. Dep't of Treasury, EEOC Appeal No. 0120130880 (Feb. 27, 2015) (finding that removal from assignment, …and denial of workplace flexibilities was not severe or pervasive). In addition, common workplace occurrences, such as the ones alleged herein, require evidence of abuse or offensiveness. Zada C. v. U.S. Postal Serv., EEOC Appeal No. 0120161460 (May 29, 2018). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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 7 2020005236 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). 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. 8 2020005236 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 5, 2022 Date