[Redacted], Kristie O., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020003346 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristie O.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020003346 Agency No. 6R0M1900134F19 DECISION On May 6, 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 April 9, 2020 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 an Operations Clerk GS-0303-05 at the Agency’s 700 Airlift Squadron, Dobbins Air Reserve Base in Georgia. Complainant asserted that she has Post-Traumatic Stress Disorder (PTSD) but said that she never informed any of her coworkers of her condition. On November 27, 2018, Complainant claimed that she had parked close to the building to “jump out and carry my Time and Attendance boxes to my office.” According to Complainant, people regularly park in that area all day, or temporarily park, but Complainant conceded that there are posted “No Parking” signs. 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. 2020003346 2 Complainant stated that she was partially blocking a car belonging to the 700 Airlift Squadron Chief of Training (CW1) but claimed that CW1 could have maneuvered around her car if he really wanted to. When Complainant came out of a meeting with her immediate supervisor (S1), CW1 told her that he had called security forces to ticket and tow her car. Complainant arrived at her car at the same time as security forces and was able to move her car without receiving a ticket or being towed. CW1 explained that he had a friend in the emergency room, so he went out to the parking lot to leave. He saw a car blocking three spaces, including the space where his car was parked. He went back into the building trying to find the owner and used the building-wide intercom. After six to seven minutes of being unable to locate the owner, he called security forces to have a patrol resolve the issue. Shortly after he made the phone call, Complainant and S1 came out of S1’s office. He asked Complainant if her car was parked outside, and when she confirmed it was her car, he said that she should move the car because it was about to get a ticket. CW1 insisted he did not know whose car it was. S1 averred that she and Complainant were in S1’s office. When they exited, they realized there was a message over the intercom about security forces towing a brown car in front of the building. At that point, they realized Complainant’s car was about to be towed. S1 observed Complainant pass by CW1 and ask why he was having her car towed. CW1 responded that she was illegally parked, he needed to leave for an emergency, and she was blocking his car. Complainant stated that she was in the process of moving her vehicle when she passed the 700 Airlift Squadron Instructor (CW2) in the hallway. Complainant heard CW2 say something but asserted that her first-line supervisor (S1) overheard CW2’s comment and documented it. In response, S1 told CW2 that his comment was inappropriate and unprofessional. The next day, S1 told Complainant that she addressed the situation. Complainant said she was offended because it was a false, slanderous statement, and that it can trigger her PTSD. Complainant believed that CW2 was upset that she filed an EEO complaint and was trying to damage her reputation. S1 confirmed that CW2 uttered a statement to the effect of “it’s not like she does any work around here. She can’t do her job and she can’t drive.” However, S1 asserted that CW2 did not direct that statement at Complainant or to anyone in particular; Complainant did not respond to the comment. S1 told CW2 that his comments were inappropriate and discussed the matter with her supervisor (S2). CW2 confirmed that he directed the comment at nobody in particular. After Complainant moved her car, Complainant contended that CW1 moved his car, and then followed her back into the building and to her office. CW1 tried to talk to Complainant but left after a few minutes. Complainant then went to the gym to get help. She then spoke with S1 and requested sick leave for the rest of the day. Complainant then went out on sick leave until December 3, 2018 and asserted that CW1’s conduct triggered her PTSD. 2020003346 3 CW1 acknowledged going to Complainant’s office but said that he was trying to explain to Complainant that he did not know the car was Complainant’s, and he was trying to thank her for moving it. CW1 denied hearing Complainant tell him to leave her alone. S2 said they have “a history in our parking lot of people going to the building next door . . . but parking in our parking lot in illegal ways. It was pretty normal for security forces to be called in order to enforce the rules.” S2 confirmed that CW1 used the intercom to try and identify the owner of the car, and then called security forces. S2 denied CW1’s actions were directed at Complainant, but rather he was trying to get to the hospital quickly. S2 believed the situation boiled down to a misunderstanding. On January 28, 2019 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (Post-Traumatic Stress Disorder) and in reprisal for prior protected EEO activity when: 1. On November 27, 2018, the 700 Airlift Squadron Instructor (CW2) made negative comments about Complainant’s job performance in the presence of peers and management by stating, “It’s not like she does any work around here,” “she can’t do her job and she can’t drive;” 2. the 700 Airlift Squadron Chief of Training (CW1) told Complainant, “your car is going to be towed or ticketed. I just called the security force police. You have blocked me in.” Complainant felt threatened by this comment; and 3. CW1 followed Complainant back into the building and to her office after she requested that he leave her alone twice. Complainant moved her car as requested by CW1.2 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 EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. 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). 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, 2 The Agency dismissed an additional claim for failure to state a claim. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the dismissal. 2020003346 4 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”). Hostile Work Environment 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; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, because of her disability or prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we agree with the Agency that Complainant has not proven her claim of a hostile work environment. We find that the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that the anti- discrimination statues are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. As more fully detailed above, testimony from several individuals confirm that CW1 was trying to leave the facility but could not because Complainant’s car was blocking his car. Several individuals testified that CW1 did not know the owner of the car and tried to locate the owner before contacting security forces. Moreover, CW1 testified that he tried to explain to Complainant that he did not know the car was hers, and to thank her for moving the car. Regarding CW2’s comment, CW2 acknowledged making a comment about Complainant doing her job and her driving abilities; however, he denied directing the comment at Complainant. Nonetheless, S1 overheard the comment and promptly informed CW2 that his comment was unprofessional and inappropriate. S1 later informed her supervisor about CW2’s comment and held a supervisors-only meeting to address the matter. There is no evidence that any similar conduct recurred. Complainant offered no testimony to rebut the Agency’s explanations and there is no evidence demonstrating that the incidents occurred because of Complainant’s protected bases. 2020003346 5 Moreover, to the extent Complainant claims that she was subjected to disparate treatment regarding the instant matters, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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 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). 2020003346 6 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 June 7, 2021 Date