[Redacted], Juli Z., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Jan 27, 2021

Appeal No. 2019005135 (E.E.O.C. Jan. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Juli Z.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, (National Guard Bureau), Agency. Request No. 2020005310 Appeal No. 2019005135 Hearing No. 560-2018-00046X Agency No. 7Q1L17002F19 (Alternate No. 7Q1L17002) DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Juli Z. v. Dep’t of the Air Force, EEOC Appeal No. 2019005135 (Aug. 20, 2020). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). At the time of events giving rise to the complaint, Complainant was employed as a Supervisory Asset Manager (Chief, Capital Asset Management), GS-1101-12, at the 22 Civil Engineer Squadron stationed at McConnell Air Force Base in Kansas. Complainant filed a formal complaint (Complaint 1) alleging that the Agency subjected her to discrimination on the bases of disability and in reprisal for prior protected EEO activity when, on September 13, 2016, her third line supervisor (S3) informed her that to get 12 months of leave without pay (LWOP) she had to resign 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. 2020005310 2 after taking this LWOP (Complainant last reported to work on June 24, 2016. She applied for disability retirement on or about September 8, 2016, and it was approved in March 2018, retroactive to July 2017); and on September 16, 2016, S3 denied her request for 12 months of LWOP and informed her that she would have to submit requests for additional LWOP in the future without giving instructions on when to do so. Nevertheless, after Complainant applied for disability retirement, she went on LWOP. On February 27, 2017, while the EEO investigation was being conducted for Complaint 1, Complainant requested an amendment adding the Agency’s “long history of harassment… continuous through all events…” culminating in a hostile work environment when: 1. From 2012, through late-2013, she was not given direction on who she was to report to; 2. Beginning 2012, and continuing, she was not given adequate training for her Chief position; 3. In or around April 2013, she began being harassed by her co-workers who continuously made disparaging and inappropriate comments about her, and her first line supervisor (S1) did not take action; 4. In or around late-April 2013, S1 made a disparaging comment to and about her that was overheard by her employees that she was not the person he would have selected for the Housing Chief, but he didn't get to pick; 5. In or around late-April 2013, and continuing, S1 made disparaging comments about her service-connected disabilities and taking leave; 6. In or around April 2013, S1 gave her a lower award compared to what others in her flight received; 7. Beginning August 2015, and continuing, S1 allowed her subordinates to go to him and not through her, making her unable to perform her duties and being met with pushback whenever assignments or reminders were given; 8. In or around February 2016, Subordinate 1 made a verbal threat towards her and management took no action; 9. In or around March 2016, S1 continued to fail to take action when rumors were being spread about “something going on” between them; and actually contributed to the spreading of the rumor; 10. In or around April 2016, S1, her second-level supervisor (S2), and S3 created/signed off on an appraisal for her where they determined that she did not meet standards; 2020005310 3 11. In or around April 2016, it was documented on her appraisal that she created a hostile work environment; 12. On or around April 29, 2016, she was issued a notice of proposed removal by S3; 13. In or around May 2016, Subordinate 1 made a second verbal threat towards her; 14. On June 22, 2016, her fourth line supervisor (S4) reduced the proposed removal to a 13- day suspension, and her fifth-line supervisor (22nd Air Refueling Wing Commander - S5) upheld the suspension; 15. On or around June 22, 2016, she received an adjusted performance appraisal by S1 and S2 which still contained negative comments; and 16. On June 24, 2016, she was notified that she would be placed on a performance improvement plan. The Agency treated the requested amendment as the initiation of EEO counseling on a new EEO complaint. On April 10, 2017, Complainant filed a formal complaint (Complaint 2). The Agency accepted incidents 2-5, 7-8, and 13, and dismissed the remaining incidents. In October 2017, Complainant requested a hearing before an EEOC Administrative Judge (AJ), who was ultimately assigned both complaints. Complainant filed a motion to add the dismissed hostile work environment claims, which the AJ denied. Additionally, the AJ dismissed all the claims raised in Complaint 2 due to untimely EEO contact. The Agency fully implemented the AJ’s decision dismissing Complaint 2 in a final order. Complainant appealed the Agency’s decision to treat her request to amend Complaint 1 as a new complaint and the AJ’s dismissal of Complaint 2. In Juli Z., v. Dep’t of the Air Force, EEOC Appeal No. 2019005135 (Aug. 20, 2020), the Commission found the Agency properly treated Complainant’s amendment as a request for EEO counseling on a new complaint (Complaint 2) and that the AJ properly dismissed Complaint 2 because Complainant failed to timely initiate EEO counseling.2 In her request for reconsideration, Complainant expresses her disagreement with the previous decision and reiterates arguments raised on appeal. The Agency did not submit a response to Complainant’s request. The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). 2 On October 3, 2019, the AJ issued a summary judgment decision on Complaint 1 finding no discrimination. Complainant’s appeal therefrom to this office is docketed as EEOC Appeal No. 2020001655 and is currently pending. 2020005310 4 Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2019005135 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 27, 2021 Date