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

Equal Employment Opportunity Commission

Mar 31, 2022

Appeal No. 2021000028 (E.E.O.C. Mar. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tessa L.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021000028 Hearing No. 480-2018-00585X Agency No. 5Z1S18002 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 September 1, 2020,2 final action 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. At the time of events giving rise to this complaint, Complainant worked as a Range Scheduler at the Agency’s 2nd Range Operations Squadron in Vandenberg Air Force Base, California. On November 22, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of “failure to accommodate a medical disability” 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. 2 EEOC regulations state that an AJ’s decision becomes an Agency’s final action if it does not issue a final order within 40 days. 29 C.F.R. 1614.110(i). The AJ issued a decision on July 23, 2020, and the Agency did not issue a final order; as such, the AJ’s decision became the Agency’s final action on September 1, 2020. 2021000028 2 A. on October 3, 2017, Complainant received an email from the Chief, Civilian Personnel Flight, asking her to “refrain from calling the personnel office” regarding her medical accommodation request; B. on September 26, 2017, Complainant obtained approval from her medical counselor to be released back to work and found four positions for which she was qualified. When Complainant presented them to a Human Resources Specialist (HRS), she received no response; and C. on July 11, 2017, Complainant called HRS and asked about options for her current situation and informed HRS that she was going to file a complaint with the Merit Systems Protection Board because the Agency did not respond to her request for medical accommodation. Complainant was told that HRS would look into it, but she received no response. On December 28, 2017, the Agency accepted the above claims for investigation. Complainant filed a request for a hearing before an EEOC Administrative Judge (AJ) on May 8, 2018. On May 30, 2018, Complainant’s attorney emailed the Agency and stated that Complainant has not alleged that she was discriminated against with respect to these three issues, which was just background information; rather, the issue was a failure to accommodate and failure to engage in the interactive process. An Agency official informed Complainant that the EEO Investigator could not amend the complaint and instructed her attorney to submit a written request to the EEO Director. Complainant’s attorney responded that they were “not asking the agency to amend her complaint.” Report of Investigation (ROI) at 28-9, 128, 288. On July 20, 2018, Complainant filed a Motion for Sanctions or Default Judgment, alleging that that the Agency refused to investigate the issues that were raised in her informal and formal complaint and failed to submit a relevant ROI to the AJ and the parties. On August 6, 2018, the Agency opposed Complainant’s motion and argued that a severe sanction of a default judgment was not appropriate. The Agency noted that, even if the AJ were to find that the Agency erred in the articulation of the accepted claims, the proper remedy would be a re-articulation of the claims and an order for the Agency to reinvestigate the re-articulated claims if the original investigation was found to be insufficient. The Agency submitted a motion for a decision without a hearing on November 9, 2018. Complainant responded that the Agency’s motion was premature because the Commission had not yet ruled on her Motion for Default Judgment. On February 11, 2019, the AJ issued an Initial Order Continuing Complainant’s Motion for Sanctions and the Agency’s Motion for Summary Judgment (“Initial Order”). The AJ ordered the Agency to respond to her questions; for example, “did the Agency respond to Complainant’s communications during the investigation?” 2021000028 3 The Agency timely responded to the AJ’s Initial Order, and Complainant filed a reply to the Agency’s response and renewed her request for a default judgment. On July 29, 2019, the AJ issued an order denying Complainant’s Motion for Sanctions, finding that her motion “distorted the record by omitting critical facts and misrepresenting its chronology as complete.” On October 15, 2019, the AJ issued another order denying Complainant’s Motion for Sanctions. The AJ denied the motion for reasons stated in the Agency’s response to the Initial Order, such as Complainant’s failure to utilize the procedure to object to the framing of issues in her complaint. The AJ added that a motion for sanctions was not a substitute for that procedure. The AJ also informed Complainant that her response to the Agency’s Motion for Summary Judgment was due on November 1, 2019. Complainant filed a response to the AJ’s order and disputed the AJ’s findings. Complainant also argued that the AJ was abusing her discretion by ordering her to submit a second response to summary judgment and discuss facts that she never raised in the informal stage. The AJ subsequently issued a decision by summary judgment in favor of the Agency. As an initial matter, the AJ noted that she made attempts to clarify the record, and while Complainant disputed the Agency’s description of the accepted issues, the AJ determined that Complainant’s allegations were misleading, at best. The AJ noted that, while Complainant interacted with the EEO Investigator regarding her ability to amend her complaint, Complainant did not file a formal amendment with the Agency’s EEO Office or the AJ to include claims that are like or related to those raised in the pending complaint. For claim A, the AJ found that Complainant’s calls were counterproductive since HRS was Complainant’s point of contact, and HRS was actively working on Complainant’s request. Regarding claim B, the AJ noted that the record showed that HRS informed Complainant on October 25, 2017, that she was being reassigned to a Management Analyst position as a reasonable accommodation. For claim C, the AJ found that the record showed that Complainant received a response eight days after HRS informed Complainant that she would look into her concerns. The AJ noted that Complainant seemed to be arguing that the time frames constituted a denial of a reasonable accommodation, but she found that the time frames were reasonable; and that the Agency’s actions did not contribute to, nor result in, a denial of a reasonable accommodation. The AJ also determined that there were no material facts in dispute regarding a disparate treatment claim because there was no evidence to suggest discriminatory animus and no evidence that the Agency’s legitimate, nondiscriminatory reasons were pretexts for discrimination. The Agency did not issue a final order on the AJ’s decision. The instant appeal followed. 2021000028 4 Standard of Review 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). Summary Judgment Decision 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 she 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. Through her attorney, Complainant asserts that the AJ erred in granting summary judgment in the Agency’s favor, but she did not identify any genuine disputes of material facts.3 A review of the record does not reveal any genuine disputes of material facts. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. AJ’s Actions Complainant contends that the AJ failed to properly identify and correct the issues in her complaint. We note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). The record shows that the AJ reviewed Complainant’s arguments and evidence, and requested additional information and evidence from the Agency, before making her determination. 3 Complainant numbered this argument as issue 3 in her appeal brief, but she skipped a section containing any arguments for this issue, when she went from “Issue 2” to “Issue 4.” 2021000028 5 We find that Complainant’s disagreement with the AJ’s decision, and Complainant’s opinion that the AJ’s actions were “not professional,” does not establish an abuse of the AJ’s discretion. Complainant Appeal Brief at 18. Complainant also argues that the AJ erred in “admonishing” her for not responding to the Agency’s Motion for Summary Judgment. Complainant avers that she filed an opposition to the Agency’s motion on November 27, 2018, and while the AJ ordered her to respond to the Agency’s Motion for Summary Judgment in her October 15, 2019 order, the AJ abused her discretion when she ordered Complainant to submit a second response. We are not persuaded that this was an abuse of discretion, as opposed to the AJ giving Complainant an opportunity to update her arguments in opposition to the Agency’s motion. In addition, Complainant asserts that the AJ erred in “dismissing” her case for misleading the Commission and “dismissing” her reasonable accommodation claim because she did not amend her complaint to include claims that are like or related to those raised in the pending complaint. However, the AJ did not “dismiss” Complainant’s complaint; rather, she issued a determination on the merits of her claims, including the failure to accommodate claim which Complainant describes as a “twist of cruelty.” Complainant Appeal Brief at 2. Sanctions Complainant argues that the AJ erred in denying her Motion for Sanctions of a default judgment. For example, Complainant asserts that the AJ erred in stating that the Complainant’s Motion for Default Judgement “distorted the record by omitting critical facts and misrepresenting its chronology as a complete record,” and when the AJ concluded that sanctions were not warranted because the Agency followed correct procedures. However, Complainant did not provide any arguments regarding the factors considered when issuing a sanction, which must be tailored to the circumstances. Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep’t of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007). In this case, Complainant only argues that she believes that the AJ’s failure to issue sanctions or remand for a supplemental investigation was a “dereliction of duties,” and that the AJ should have been “more skeptical” and “more scrupulous” regarding the Agency’s responses. Complainant Appeal Brief at 19-20. 2021000028 6 However, we find that Complainant did not demonstrate that the AJ abused her discretion when, after reviewing the parties’ filings, she concluded that the Agency’s actions did not warrant the extreme sanction of a default judgment. We note that the AJ did not explain how the record was distorted, but we find that there is evidence to support the AJ’s conclusion. For example, Complainant’s attorney repeatedly claimed that she sent the Agency a letter on January 5, 2018, in which she raised objections to the Agency’s acceptance of the claims. With its response to the Initial Order, the Agency provided a declaration from the Equal Opportunity Director stating that neither she, nor anyone on her staff, received this letter. The Agency also noted that Complainant provided no proof that the letter was actually mailed, and she did not specify the method by which it was sent. Agency Response to Initial Order at 4, Equal Opportunity Director Declaration at 3. We find that the Agency is correct in noting that there is no evidence of how this January 5, 2018 letter was purportedly sent to the Agency. Notably, this letter is simply a typed unsigned document, and Complainant’s attorney never described how she sent this letter to the Agency. Complainant Appeal Brief, Exhibit 1 Attachment 8. On appeal, Complainant counters that the Equal Opportunity Director “claimed that the Agency did not receive the letter, but that is another attempt to deflect attention away from the Agency’s wrongdoing,” but Complainant still provides no evidence or clarification of how she sent this letter to the Agency. Complainant Appeal Brief at 14. Included as a footnote in her appeal brief, Complainant requests that the Commission sanction the Agency with a default judgment for “refusing to process” her failure to accommodate claim. Complainant Appeal Brief at 6. However, we find that Complainant’s blanket demand for a default judgment does not address the various factors to support the issuance of a sanction. Further, we find that there is sufficient information in the record to make a fair and reasoned determination on the failure to accommodate claim, discussed further below. Specifically, Complainant and Agency witnesses provided testimony and supporting documentation regarding a failure to accommodate claim. As such, we decline to sanction the Agency with a default judgment. Reasonable Accommodation Complainant asserts that she tried to have her claim described as a failure to engage in the interactive process and failure to respond or process her request for medical accommodation from June 28, 2016, to November 3, 2017. However, we note that the accepted claims regarding her request for an accommodation include July 11, 2017, as the earliest date of an Agency action. When the Agency informed Complainant’s attorney that she would need to file an amendment if she wished to modify the claims, Complainant’s attorney responded that they were “not asking the agency to amend her complaint.” ROI at 288. In addition, Complainant confirms that she did not file an amendment with the Agency or AJ. Complainant Appeal Brief at 24. To the extent that Complainant desired to have her claim include an allegation of a failure to accommodate from June 28, 2016, she should have filed an amendment with the Agency or the AJ. 2021000028 7 As such, we find that the AJ properly limited Complainant’s claim to an allegation of a failure to accommodate since July 11, 2017. Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to accommodate Complainant, nor fail to engage in the interactive process. Complainant averred that on July 11, 2017, she contacted HRS regarding her leave without pay situation. ROI at 142. HRS stated that she sent Complainant the reasonable accommodation packet because her July 11, 2017 medical documentation did not identify any limitations. When Complainant submitted the reasonable accommodation packet on August 9, 2017, HRS returned it to Complainant because it contained contradictory information. Complainant resubmitted her reasonable accommodation packet on August 14, 2017. HRS then visited Complainant’s management team to discuss possible accommodations for Complainant. ROI at 202-3. On August 30, 2017, Complainant’s first-line supervisor determined that Complainant’s current position could not be performed from an alternate location.4 ROI at 83-4. On September 5, 2017, HRS informed Complainant that the Agency was unable to accommodate Complainant in her current position and offered a reassignment search, and Complainant accepted the offer on September 7, 2017. ROI at 116-18. On October 25, 2017, HRS informed Complainant of her reassignment to a Management Analyst position. HRS instructed Complainant to report to her new supervisor on November 6, 2017, in an unofficial detail status, until the position became permanent on November 29, 2017. ROI at 182. As such, we find that the Agency granted Complainant a reassignment as a reasonable accommodation. We also find that the Agency engaged in the interactive process starting on or about July 11, 2017, when HRS sent the reasonable accommodation packet to Complainant. Upon receipt of Complainant’s updated medical documentation on August 14, 2017, HRS discussed possible accommodations with her managers. Once the Agency determined that it was unable to accommodate Complainant in her current position, HRS conducted a reassignment search and informed Complainant of a reassignment to a new position on October 25, 2017. Accordingly, we find that the record shows that HRS processed Complainant’s reasonable accommodation request in a timely manner, and Complainant did not establish that the Agency failed to engage in the interactive process, or that it failed to respond to, or process, Complainant’s request for medical accommodation, since July 11, 2017. On appeal, Complainant argues that she never claimed that the Chief or HRS discriminated against her; as such, we find no need to disturb the AJ’s findings of no disparate treatment for claims A, B, or C. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 4 Complainant stated that her reasonable accommodation request was for an alternative work site. ROI at 140. 2021000028 8 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. 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. 2021000028 9 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 March 31, 2022 Date