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

Equal Employment Opportunity Commission

Dec 16, 2021

Appeal No. 2021001095 (E.E.O.C. Dec. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myrna S.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021001095 Hearing No. 410-2019-00300X Agency No. 9R1M1800475 DECISION 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 final action 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Logistics Manager, NH-0346-03, at the Agency’s Command and Control Intelligence, Surveillance and Reconnaissance Division, JOINT STARS (Surveillance Target Attack Radar System) Branch, located on the Robins Air Force Base in Georgia. On August 2, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and harassed her on the bases of race (Black), national origin (African-American), sex (female), color (black), age (58), and in reprisal for prior protected EEO activity when: 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. 2021001095 2 1. On March 22, 2018, Complainant was issued a derogatory memorandum for record write-up, by her first level supervisor, S1; 2. On April 2, 2018, Complainant was issued a derogatory memorandum for record write-up, by her first level supervisor, S1; and 3. On April 4, 2018, Complainant was issued a derogatory memorandum for record write-up, by her first level supervisor, S1. 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 requested a hearing. On September 10, 2020, AJ1 issued an Acknowledgment and Order Scheduling Initial Conference that set an Initial Conference for September 21, 2020. The Order advised that at the conference, the parties must be prepared to discuss all submitted documents at the Initial Conference, after which AJ1 would issue an Order concerning further adjudication of the complaint. AJ1 noted he was authorized to render a decision when: (1) further development of the record is unlikely to lead to a finding of discrimination; and (2) preponderant evidence fails to show that Complainant was subjected to discrimination. AJ1 advised that at the conference, they would address whether such a ruling is appropriate in the case. The conference was continued to September 28, 2020, and Complainant submitted supplementary evidence at that time. On September 30, 2020, AJ1 issued a decision without a hearing. AJ1 noted that Complainant had filed another complaint (Agency No. 9R1M1741122) that presented two claims based on events that preceded this case (a one-day suspension in October 2017 based on events that occurred in July 2017) and events that followed (a notice of proposed suspension and a five-day suspension that occurred in June 2018). AJ1 noted that another AJ (AJ2) entered summary judgment in that case which the EEOC affirmed on appeal. AJ1 noted that Complainant sought to amend this complaint to relitigate the claims that were disposed of in 9R1M1741122. AJ1 denied the motion. AJ1 noted AJ2’s decision did not touch upon the events of March 22 through April 4, 2018, and contrary to Complainant’s representation, it did not appear that the report of investigation touched upon them either. Regarding the claims at issue, AJ1 noted that on March 22, 2018, S1 issued Complainant a memo that stated he had tried to send Complainant an email without success and had printed a copy of it and delivered it to her. The memo asked Complainant to acknowledge receipt which she did. On April 2, 2018, S1 notified Complainant he had not received two performance reviews from her that were due on March 28, 2018. S1 told her to finish them by the next day. 2021001095 3 This required Complainant to input them into a computer system she claimed was not working properly, but all of S1’s other subordinate supervisors had already completed the task using the requisite software. Complainant refused to sign the document acknowledging receipt and instead contacted S1’s boss (S2) while S1 was still in her office, insisting he intervene on Complainant’s behalf. S2 did not intervene. On April 4, 2019, S1 issued Complainant a memo that told her to finish three Form 8s, that had been outstanding since March 22, 2018, by the end of the day. Complainant claimed her subordinates were supposed to perform that task. AJ1 noted it was appropriate for S1 to raise the issue with Complainant, that this does not show harassment, it simply shows that he followed the chain of command. AJ1 found Complainant had no basis for expecting her boss to ignore the fact that work assigned to her unit was overdue. AJ1 noted Complainant completed the tasks that were a point of controversy and S1 took no further action. AJ1 found this tended to show that his motive was to simply get the tasks completed on time, most likely so his own superiors would be satisfied with his performance. Complainant did not point to any conflicting evidence. AJ1 determined: (1) further development of the record is unlikely to lead to a finding of discrimination, (2) and preponderant evidence fails to show that Complainant was subjected to discrimination. Thus, AJ entered judgment in favor of the Agency. When the Agency failed to issue a final order within forty days of receipt of AJ1’s decision, AJ1’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). ANALYSIS AND FINDINGS 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). In the instant case we find that a review of the record reflects no genuine dispute of material fact. The record is adequately developed and the AJ properly issued a decision by summary judgment. 2021001095 4 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 failed to establish such a dispute. 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 AJ1’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that AJ1 correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, the Agency’s final action finding no discrimination is AFFIRMED. 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. 2021001095 5 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. 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 December 16, 2021 Date