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

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2020001959 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thaddeus N.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020001959 Hearing No. 541-2016-0096X Agency No. 9X1S15012 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s final order concerning his 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 For the reasons that follow, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Motor Vehicle Operator at Peterson Air Force Base, in Colorado Springs, Colorado. S1 was his first level supervisor. S2 was his second level supervisor. On August 13, 2015, he filed a formal complaint alleging discrimination as follows: 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 The Agency did not issue a final order in this matter. Consequently, by operation of our regulations, the Administrative Judge’s September 24, 2019, decision became the Agency’s final order forty days after its receipt. See 29 C.F.R. § 1614.109(i). 2020001959 2 A. He was discriminated against based on age (over 40) regarding the assignment of duties, specifically on May 5, 2015, when he was told he was unfit for duty by S1. Complainant was told this decision was based upon the recommendation of the flight surgeon. On May 6, 2015, Complainant’s government driver’s license was revoked, and his assigned duty location was changed to the Motor pool. B. He was discriminated against on the bases of race (Black), age, and disability (cervical injuries, PTSD) when he was required to perform a fitness for duty exam on April 27, 2015, because S1 felt his doctor’s recommendation was inconsistent and he would be unable to perform his duties as a driver and safely transport passengers. C. He was discriminated against based on disability when management failed to reasonably accommodate him on June 3, 2015. D. He was discriminated against on the bases of race and religion (Christianity) with regard to the terms and conditions of his employment; specifically, on May 29, 2015, when S2 informed him that after submitting his most recent advance leave request that no other requests would be granted. Complainant felt he was being subjected to disparate treatment based upon his expression of distaste with a conversation that occurred regarding homosexuality on June 13, 2014. After Complainant expressed objection to the conversation, S2 made the statement “you’re a Christian man, I’m a Christian too, you should feel how I feel!” E. On or about July 18, 2014, S2 made the statement to S1 that he dared Complainant to file an EEO complaint. Complainant also alleged that S2 discriminated against him and subjected him to a hostile work environment when: (1) from June 13, 2014 until July 30, 2015, he used continuous profanity in his presence; (2) on August 20, 2014, Complainant was told to report to duty despite his injuries and disabilities and not cleared by Doctor 1 and a memorandum was faxed attention to S1 and S2 and to the Civilian personnel office - an Agency official and S1 threatened to place Complainant in a status of Absent Without Leave (AWOL) and failed to process his injury claim in a timely manner even though he had medical documentation confirming his appointment and medical attention timely submitted to the office in accordance with the regulations and guidelines; (3) on July 27, 2015 and July 28, 2015, S2 harassed him about what he did on his lunch break and then restricted Complainant to be in the drivers lounge unless he was cleaning a vehicle; (4) on or about July 28, 2015, S2 made the statement to Complainant, showing his discriminatory and harassing behavior and disparate treatment that “so what, he was singling me out, I have a problem with you and I will dock your pay;” (5) on July 30, 2015, Complainant was asked to turn in his card and badge since he was no longer driving. S2 told him that he could not return to the premises even to visit the other employees, stated he was a threat but he was provided no evidence for this false accusation, and yelled for security in front of the other employees to escort him from the building for no reason; and (6) on or about July 30, 2015, S2 asked other employees to sign false counseling statements. These comments and statements reflect the harassment, disparate treatment, hostile work environment that Complainant was subjected to, as a result of reprisal by S2. 2020001959 3 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). We find that the record provides substantial evidence in support the AJ’s findings and conclusions that Complainant did not establish discrimination as alleged. CONCLUSION We AFFIRM the Agency’s final order finding no discrimination. 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. 2020001959 4 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. 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. 2020001959 5 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 8, 2021 Date