[Redacted], Enriqueta T, 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionApr 28, 2022Appeal No. 2021003469 (E.E.O.C. Apr. 28, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Enriqueta T,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021003469 Hearing No. 410-2020-00428X Agency No. 9R1M1901523 DECISION On June 1, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 29, 2021 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. At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst, 0560, GS 12 at the Agency’s Financial Management Analysis Operations (FMAO) Branch at Robins Air Force Base (AFB), Georgia. On December 17, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when: 1. On February 22, 2019, Complainant advised the Chief, Financial Operations, (Chief 1) about a meeting on February 21, 2019, in which Complainant was not allowed to leave the room, creating a hostile work environment, however, Chief 1 failed to take appropriate action; 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 2021003469 2. On March 28, 2019, Complainant was instructed by the Chief, Personnel & Support (Chief 2) to provide daily notification of her arrival and departure, however, no other employees were instructed to do so; 3. On April 8, 2019, the Chief, Travel and Material, (Chief 3) sent an email to Chief 2 requesting she tell Complainant to “load targets to her program right now,” even though “JAVA” was inoperable; 4. On April 22, 2019, Chief 3 issued Complainant a Memorandum for Record for failure to let Chief 3 know Complainant was at work even though Complainant notified her supervisor as directed in March 2019; 5. On April 29, 2019, Complainant received a verbal counseling from Chief 2 for not approving her appraisal in Defense Performance Management and Appraisal System; 6. On July 22, 2019, Chief 2 told Complainant she would have to take 30 minutes of annual leave for returning late from lunch, however, Chief 2 previously approved Complainant to work an extra 30 minutes in lieu of leave, which Complainant worked on July 19, 2019; 7. On August 8, 2019, Chief 3 requested Complainant send her weekly status updates regarding the cost/flying hour reimbursement program; and 8. On August 29, 2019, Chief 1 accused Complainant of having $21M of unprocessed transactions under her program. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. On February 16, 2021, the assigned AJ issued a notice of intent to issue a decision without a hearing (notice), informing the parties that he had determined entry of summary judgment in favor of the Agency may be appropriate. The AJ’s determination was based on the Agency’s stated reasons for the alleged actions which the AJ found to be legitimate and non- discriminatory as follows. Regarding claim 1, Chief 1 did not take action because she observed no further tension between Complainant and the others and believed they were working together better and therefore action was not warranted. ROI at 543. Regarding claim 2, no other employees were instructed to provide daily notification of their arrival and departure because all other employees were already providing the daily notification. Complainant was only instructed to do so because Complainant was the only one not already providing daily updates. ROI at 512-13. 3 2021003469 Regarding claim 3, Chief 3 asked Chief 2 to direct Complainant to load funds into the account because Complainant oversees the account and because the balance of the account had gone well below its expected minimum balance. ROI at 514 and 531-33. Regarding claim 4, Complainant claimed to have notified her supervisor of her whereabouts. Chief 3 however explained that she created a Memorandum for Record because she could not account for Complainant’s time while Chief 2 was on leave. ROI at 533. Regarding claim 5, Chief 2 did use verbal counseling because Complainant ignored Chief 2’s request to acknowledge receipt of the performance appraisal. ROI at 515-16. Regarding claim 6, Chief 2 told Complainant and several other employees that they would have to either take 30 minutes of annual leave for returning late from lunch or stay late to make up the difference. ROI at 518-19. Complainant was completely nonresponsive to Chief 2’s multiple attempts to ascertain which choice Complainant made, whilst the other employees responded right away. Id. Ultimately, Complainant informed Chief 2 that Complainant worked an extra 30 minutes in lieu of leave, and Complainant’s timecard was certified without incident. Id. Regarding claim 7, Chief 3 requested Complainant send her weekly status updates regarding the cost/flying hour reimbursement program because Chief 3 needed the information to accurately brief Agency leadership on the status of the programs Chief 3 managed. ROI at 534-36. Regarding claim 8, Chief 1 requested that Complainant provide information and/or take corrective action regarding a $21M discrepancy under one of Complainant’s programs because Chief 1 was told that such a discrepancy existed, and she needed to resolve the error. ROI at 549-50. The parties could respond to the notice and/or oppose summary judgment through March 3, 2021. On March 3, 2021, Complainant filed a response to the notice. The AJ subsequently issued a summary judgment decision in favor of the Agency. The AJ found that the Agency proffered legitimate, nondiscriminatory reasons for all of the eight actions in question. The AJ then determined that Complainant failed to proffer any evidence to demonstrate that the Agency subjected her to discrimination. After reviewing the record and Complainant’s submission in response to the Notice, the AJ explained that Complainant did not show that discriminatory animus motivated any of the eight actions in question, finding that Complainant only relied on her or her coworkers’ own speculation and unsupported allegations. Complainant offered no factual dispute, and she did not proffer facts which would call into question the Agency’s stated reasons for the alleged actions. The Agency did not issue a final order. Therefore, the AJ’s decision that Complainant failed to prove discrimination as alleged became the Agency’s final order. The instant appeal followed. On appeal, Complainant reasserts her conclusion that she was the victim of discrimination and that she proved her case in her submission to the Notice as well as in her submissions provided in the ROI. 4 2021003469 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). Contrary to Complainant’s assertions that she was the victim of discrimination and that she proved her case, Complainant failed to identify any factual disputes that the AJ overlooked or otherwise should have examined at a hearing. 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. 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. The AJ’s decision was based on specific documents in the record which Complainant did not dispute, and properly determines that the instances cited by Complainant are not discriminatory based on the Agency’s stated legitimate non-discriminatory reasons. 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 (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. 5 2021003469 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. 6 2021003469 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 28, 2022 Date Copy with citationCopy as parenthetical citation