EEOC Appeal 2020000044

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zoila P.,1
Complainant,
v.
Barbara M. Barrett,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 2020000044
Agency No. 9H1C1800655T
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 July 31, 2019, 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 a Medical Instrument
Technician at the Agency’s 99th Medical Group in Nellis Air Force Base, Nevada. Complainant
stated that she was put on medical leave and her last day in the office was September 20, 2017.
Report of Investigation (ROI) at 175,181.
On October 12, 2017, Complainant filed a claim with the Office of Workers’ Compensation
Program (OWCP). ROI at 31-2. Complainant stated that her claim was denied in December 2017.
ROI at 184. Complainant also stated that in December 2017, she came into the office, and stated
that she wanted to quit. ROI at 186.
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.

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On March 12, 2018, Complainant’s first-line supervisor (S1) was asked to contact Complainant to
determine her status because there was no separation action in the system. Complainant informed
S1 that she was on “medical leave”; however, a Human Resources Specialist noted that there was
no record of Complainant’s leave request or any medical documentation. On March 13, 2018,
Complainant met with the First Sergeant (FS) to return her common access card (CAC) because
she had quit. FS attempted to contact Complainant to verify that she resigned, but Complainant
did not respond. ROI at 134-40.
On May 21, 2018, a Nurse Manager (NM) issued Complainant’s Notice of Termination During
Probationary Period, effective June 1, 2018. NM noted that since March 2017, Complainant had
excessive unscheduled leave, without properly requesting leave; showed up late to the operating
room (OR), or she was unaware of her responsibilities when she arrived; and repeatedly left work
early or arrived late. NM also noted that Complainant acted unprofessionally; for example,
Complainant was “verbally aggressive” when responding to coworkers when they attempted to
communicate their concerns. ROI at 98-100.
On August 24, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her based on her disability (mental) when on July 13, 2018, she learned that she was
terminated during her probationary period. Complainant elected to participate in the Agency’s
Compressed, Orderly, Rapid, Equitable (CORE) process, instead of traditional EEO counseling.2
ROI at 14. The parties participated in a CORE fact-finding conference, and the Agency
subsequently issued a final decision.
The Agency found 	that 	Complainant 	did not establish 	a prima facie case of 	disability
discrimination; 	however, 	it 	noted 	that 	management 	officials 	provided 	legitimate 	and
nondiscriminatory reasons for its action. The Agency stated that NM noted that Complainant was
never on approved leave for her OWCP claim, which was denied, and that Complainant did not
respond to S1’s attempts to reach her. NM also stated that Complainant was removed, in part, due
to several instances when she could not be located; several instances when she arrived late or left
early; and a verbal altercation with another employee.
The Agency then found that Complainant did not meet her burden to show that NM’s explanations
were unworthy of belief, or that it was pretext for discrimination, and that there was no evidence
that Complainant’s disability was a factor in NM’s action. The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On October 1, 2019, Complainant contacted the Agency to appeal the final decision, and the
Agency forwarded Complainant’s appeal to the Commission. With her appeal, Complainant
submitted medical documents, but she did not provide any arguments to support her appeal. On
2 The CORE process is a pilot program, approved by the Commission, pursuant to 29 C.F.R. §
1614.102(1).

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October 30, 2019, Complainant contacted the Commission to request an extension to file an appeal
brief. Complainant noted that she was currently homeless, and that she was focused on her new
job. The Commission granted Complainant a 10-day extension, until November 19, 2019.
Complainant emailed the Commission on December 3, 2019. Complainant stated that management
officials were aware of her medical conditions, and that they should not have fired her while she
was getting medical attention.
The Agency responded to Complainant’s appeal. As an initial matter, the Agency argues that
Complainant’s appeal is untimely. The Agency notes that it issued the final decision on July 31,
2019, and that its tracking information shows that it was delivered on August 5, 2019. The Agency
asserts that Complainant filed her appeal on October 1, 2019, which is beyond her 30-day deadline.
The Agency also argues that, assuming that Complainant’s appeal is timely, management officials
had ample legitimate reasons for terminating Complainant’s employment, and that Complainant
failed to rebut the reasons. The Agency requests that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
Timeliness of Appeal
Appeals to the Commission must be filed within 30 calendar days after Complainant receives
notice of the Agency's final action. 29 C.F.R. § 1614.402(a). With its opposition brief, the Agency
provided a copy of the tracking results, which showed that the final decision sent to Complainant,
via certified mail, was “Left with an Individual” in “North Las Vegas” on August 5, 2019.
However, the Commission has found that a generalized reference to a city and zip code is
insufficient to establish the actual delivery date of receipt by a complainant. See Ciera B. v. Social
Security Admin., EEOC Appeal No. 0120161197 (May 19, 2016); Lipscomb v. U.S. Postal Serv.,
EEOC Appeal No. 0120081267 (Mar. 25, 2008). In addition, we note that Complainant informed
the Commission that she was homeless. While Complainant did not specify when she became
homeless, we find that the Agency has not met its burden to show that Complainant received the
final decision on August 5, 2019. As such, we will consider Complainant’s appeal to be timely.
Standard of Review
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 Chap. 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, 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”).

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As an initial matter, we find that Complainant’s appeal brief is untimely. The Commission granted
Complainant an extension to file her brief, until November 19, 2019, and she did not submit her
brief until December 3, 2019 Even if we consider the brief, it does not change our ultimate finding
of no discrimination.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 	Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of disability discrimination,
we find that the Agency proffered legitimate, 	nondiscriminatory reasons for terminating
Complainant’s employment during her probationary period. NM stated that she decided to remove
Complainant because there was no indication that Complainant was returning to work, in addition
to her frequent tardiness, frequent absences, and unprofessional behavior. ROI at 292.
Complainant 	has 	not 	shown 	that 	the 	proffered 	reasons 	were 	pretext 	for 	discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05. Here,
Complainant has not provided any evidence to show that S1’s reasons are not worthy of credence.
Rather, we find that the record supports NM’s reasons for removing Complainant. For example,
Complainant admitted that she came to work late, or did not show up for work, due to a lot of
“stressors” in her life, and that she “can’t say” that she disclosed her medical conditions as a reason
for her absences. ROI at 172-3. The record also contains evidence showing that various Agency
officials informed Complainant’s supervisors of issues with Complainant’s performance and
conduct. It was reported that Complainant was late and “disappeared for a while”; came

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unprepared for cases; and had “no idea what she is doing in the OR (technical wise).” Complainant
also had a “push back attitude” and was “condescending” to other staff members. ROI at 114,116-
9,121.
While Complainant filed an OWCP claim in October 2017, we note that there was confusion
regarding Complainant’s absence. In mid-November and/or December 2017,3 Complainant came
into the office and announced that she was quitting and took her belongings. While Complainant
denied her intent to resign to S1, she immediately gave her CAC to FS, and she did not respond to
his efforts to contact her. We find that Complainant’s actions reasonably support NM’s
determination that Complainant did not plan to return to work.
In addition, the Commission has long held that an Agency has broad discretion to set policies and
carry out personnel decisions, and it should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248, 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
In this case, there is no evidence of unlawful motivation due to Complainant’s disability. As such,
we find that Complainant did not establish that the Agency discriminated against her based on her
disability when it terminated her employment during her probationary period.
CONCLUSION
Accordingly, we AFFIRM the Agency’s final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
3 Complainant denied announcing her intent to quit in mid-November, and she stated that this
occurred in December. ROI at 194. However, a witness stated that in November, Complainant
“jokingly” tried to give him her CAC card, stating that she did not need it, and she cleared out her
desk. ROI at 349-50.

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Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your 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.

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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
September 11, 2020
Date