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

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003817 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sallie B.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2020003817 Hearing No. 541-2017-00148X Agency No. 6W0B17002 DECISION On June 18, 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 May 23, 2020, final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND Prior to her retirement on August 14, 2017, Complainant worked as a Sexual Assault Response Coordinator (SARC) and Victim Advocate at the Sexual Assault Prevention and Response Office (SAPRO) for the Air Force Academy (the Academy) in Colorado Springs, Colorado. On October 19, 2016, Complainant contacted an EEO Counselor. Complainant and the Agency were unable to resolve the matter informally. 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 2020003817 On October 20, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (immune deficiency disorder, vascular migraines, clinical depression, social anxiety disorder, osteo-arthritis in the cervical and lumbar spine, and scoliosis), age (62), and in reprisal for EEO-protected activity (Agency No. 6W0B17002) when: 1. On September 24, 2016, Complainant's first-line supervisor, the SAPRO manager (“S1”), entered negative and inaccurate information into Complainant’s 971 personnel file. 2. On or about September 29, 2016, S1 recommended to Complainant’s second-line supervisor, the Academy Vice Superintendent (“S2”), that Complainant’s SARC and Victim Advocate duties be revoked. 3. On September 30, 2016, S1 sent an email to SAPRO staff stating, “[Complainant’s] Defense Sexual Assault Advocate Certification Program certification was suspended pending an inquiry into a report of an alleged ethics violation. Effective immediately, [Complainant] will have no contact with victims, victims’ files, or access to the Defense Sexual Assault Incident Database.” 4. On October 3, 2016, S1 recommended to the SAPRO deputy manager (“Deputy”), that Complainant’s Department of Defense Sexual Assault Advocate Certification Program credentials be pulled. 5. On or about September 15, 2016, S1 removed Complainant’s SARC responsibilities and reassigned them to a Captain, who was age 33 and an allegedly less-qualified SAPRO Victim Advocate. 6. S1 only acknowledges ideas, suggestions, or input from younger SAPRO staff and routinely ignores Complainant’s input during staff meetings. 7. On October 20, 2016, S2 issued a Temporary Assignment and Relocation memorandum directing the relocation of the Complainant from her original work center at SAPRO to the Academy’s headquarters building. Furthermore, S2 directed Complainant to “refrain” from visiting or communicating with the SAPRO. 8. Complainant received a Letter of Reprimand from S2, dated February 13, 2017. 9. On August 14, 2017, Complainant was given a Notice of Proposed Removal from the SAPRO Program Analyst. 10. On November 27, 2017, when Agency management provided the report of a Command Directed Investigation (CDI) to members of the media without redacting Complainant’s name. 3 2020003817 11. On December 14, 2017, on a national news television broadcast, the Academy Superintendent named Complainant during the broadcast. After an 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s August 19, 2019, motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on April 13, 2020. When the Agency did not issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding of no discrimination became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. Summary judgment is appropriate where an AJ determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. 4 2020003817 Allegation of AJ Error During Discovery As an initial matter, on appeal, Complainant argues that the AJ failed to enforce a discovery order when the Agency refused to disclose correspondence related to release of the CDI without redacting Complainant’s name. EEOC Regulation 29 C.F.R. § 1614.109 grants extremely broad deference as to how the AJ manages an administrative hearing. For reversible AJ error, a very “high bar” has been set. Complainant must prove an abuse of discretion that prejudiced the outcome of her case. We discern no impropriety on the part of the AJ. We determine that the AJ acted within the broad discretion 29 C.F.R. § 1614.109 allows by ruling that Complainant’s discovery dispute about the Agency’s records was untimely raised. We now address the merits of Complainant’s claims. Disparate Treatment: Claims 1, 2, 3, 4, 5 and Claims 7, 8, 9 We observed that Complainant named S1, who was in her 50s, as her primary official responsible in her claims of disparate treatment motivated by unlawful animus towards Complainant’s age and disability. Without so finding, we have assumed that Complainant stated a prima facie case for disparate treatment based on age or disability. However, the AJ correctly determined that the Agency management witnesses articulated legitimate reasons the adverse actions at issue. Complainant failed to carry her burden of proving, with preponderant evidence, that any of the actions taken by the Agency were unlawfully motivated. We concur with the AJ on Claim 1 wherein Complainant stated that S1 rated Complainant’s performance lower than had prior supervisors. The record revealed that it was the first evaluation that Complainant received from S1. Witnesses on the SAPRO staff agreed with Complainant that it was difficult to work for S1 because she was very demanding. Testimonial evidence described S1 as someone who bullied subordinates in general, and not just Complainant. It follows that Complainant has not convinced us that the information in her performance appraisal was false or discriminatory. The statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). We likewise concur with the AJ on Claims 2, 3, 4, 5, 7, 8, and 9, as discussed hereafter. The Agency’s management witnesses justified revoking Complainant’s access to military sexual assault data, suspending Complainant’s Victim Advocate certification, and relieving Complainant as SARC. They testified that Complainant had violated ethics rules while acting in her capacity as SARC. Specifically, Complainant had called sexual assault victims using her personal cell phone as opposed to using a government-issued phone. 5 2020003817 Complainant had communicated with witnesses and family members insecurely through her personal social media account. Complainant had driven one victim in her personal vehicle so they could find out if a sexual assault perpetrator of was still in the local area. Complainant admitted to engaging in these actions, but asserted that other SAPRO office personnel had committed similar misconduct. Nevertheless, the record reflects that Complainant held supervisory responsibilities greater than other SAPRO staff and it was therefore reasonable for the Agency to have held Complainant to a higher level of accountability.2 Moreover, the AJ further distinguished Complainant from those Complainant argued were her comparators. For example, the Agency investigated one of Complainant’s subordinates, but that investigation was ongoing at the time of Complainant’s claims. Later, those allegations against the subordinate SAPRO employee were unsubstantiated whereas the Agency substantiated its charges against Complainant. Complainant disputes the AJ’s findings that the SAPRO had performed poorly during Complainant’s tenure as SARC. As an appellate exhibit, Complainant presents a report from the Department of Defense (DoD) Office of Inspector General (IG Report).3 We recognize that the IG Report indicated that , in Complainant’s time as the Academy SARC, the SAPRO provided cadets with services that were in compliance with applicable regulations. However, the IG Report did not individually absolve Complainant of ethical problems or address criticisms that her SAPRO was beset by acrimony. There is also little evidence of retaliatory animus once the ethical problems were uncovered. According to sworn statements, within the SAPRO, the files on military sexual assaults were kept in a manner readily accessible to staff. To safeguard information in accordance with governing policies, once the ethical issues were discovered, the Agency decided it was necessary to create a firewall between Complainant and the other SAPRO staff. It was also necessary for S1 to assign another SAPRO staff member to take-over as SARC. Complainant proffered insufficient evidence of her suspicion that S1 took adverse actions against her based on prohibited considerations. S1’s email prohibiting staff from discussing SAPRO matters was logical. The letter of reprimand was an appropriate disciplinary action for Complainant’s failure to follow standard operating procedures designed to protect the privacy of persons involved with sexual assault reports. Similarly, we find the Agency’s removal was justified based on her conduct. Specifically, the record reflects that Complainant had shared gossip about Academy personnel. The overall evidence of record supported the Agency’s rationales as stated in Complainant’s removal letter. SAPRO staff attributed low morale to Complainant’s supervisory approach. 2 We noticed that most of Complainant’s civilian coworkers on the Academy SAPRO staff ultimately lost their positions later. This demonstrates that Academy management’s disappointment with the SAPRO was generalized as opposed to targeted against Complainant. 3 The IG Report had published on September 30, 2019; it was designated IG-2019-125 and entitled “Evaluation of the DoD’s Handling of Incidents of Sexual Assault Against (or Involving) Cadets at the Academy.” 6 2020003817 The increasing sexual assaults during Complainant’s later years with the Agency implied that her prevention efforts as the Academy SARC had been ineffective. Based upon evidence of record, issuing Complainant a notice of removal just before her retirement was not discriminatory. Harassment: Claim 6 We considered Claim 6, regarding S1 showing favoritism to ideas from other SAPRO employees during staff meetings, in the context of a work environment that was hostile to Complainant. Here, the AJ’s analysis was on-point because EEOC has consistently held that which can be described as a personality conflict or regular admonishment does not create an unlawfully hostile workplace. S1’s dismissiveness of Complainant’s input at staff meetings lacked the severity necessary to establish a discriminatory harassment claim. Reprisal/Retaliation: Claims 10 and Claim 114 We agree with the AJ’s determination on Claim 10, regarding release of the CDI report with Complainant’s name unredacted. According to Complainant, the Agency did not release the CDI of a Brigadier General at the Academy, who the Agency investigated for fostering a toxic work environment and ultimately removed as Commandant of Cadets in April 2019. However, as determined by the AJ, the Brigadier General was simply unlike Complainant in terms of position, rank, duties, and military status. We also agree with the AJ’s determination on Claim 11, regarding when the Academy Superintendent identified Complainant by name during an appearance on a national news television broadcast. Complainant herself appeared on the same television program. Complainant has not proved the Superintendent spoke her name in a manner indicating he was motivated by retaliatory animus. To the contrary, the Superintendent referenced Complainant’s leadership as SARC and stated he respected Complainant’s service in the SAPRO. The Superintendent stated that the SAPRO office was not maintaining standards. When asked to respond to Complaint saying victims were not believed or sexual assaults were minimalized, the Superintendent replied, in relevant part as follows: She did bring a number of items to our attention . . . but I think it’s important that you don’t just focus on [Complainant’s Name] and that office . . . . 4 Although not expressly addressed by the AJ, the essence of Claims 10 and 11 arguably reflects whether the Agency violated Complainant’s right to privacy and, if so, whether Agency actions damaged her reputation. To the extent that Complainant claimed a violation of the Privacy Act, 5 U.S.C. § 552a, United States District Courts have exclusive jurisdiction over unauthorized government disclosures of personal of identifiable information contained in federal records. Complainant v. U.S. Postal Serv., Appeal No. 0120151695 (Aug. 24, 2015) citing Bucci v. Dep’t of Ed., EEOC Request Nos. 05890289, 05890290, 05890291 (Apr. 12, 1989). 7 2020003817 In other words, the Superintendent’s answer redirected the discussion away from Complainant in order to avoid disparaging her or blaming her for the sexual assault problems at the Academy. Complainant, herself, was voluntarily interviewed by the same television journalists on the same news program. The network gave Complainant comparable time to clarify her version of events. Based on the evidence presented, we cannot find that the Superintendent subjected Complainant to unlawful retaliation. CONCLUSION We AFFIRM the AJ’s decision by summary judgment, finding no discrimination or unlawful retaliation was established, which became the Agency’s final decision in the absence of the Agency issuing a 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 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. 8 2020003817 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. 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. 9 2020003817 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 November 4, 2021 Date