01972729
04-14-2000
Cathy Reed, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Cathy Reed v. Department of the Air Force
01972729
April 14, 2000
Cathy Reed, )
Complainant, )
) Appeal No. 01972729
v. ) Agency No. TE1M94388
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant timely<1> initiated an appeal from a final agency
decision (FAD) concerning her equal employment opportunity (EEO)
complaint of unlawful employment discrimination on the bases of race
(African-American), color (Black), sex (female), reprisal (prior EEO
activity), and physical disability (unspecified lung condition), in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., and the Rehabilitation Act of 1973,<2> as amended,
29 U.S.C. �791, et seq.<3> Complainant alleges she was discriminated
against on the above-stated bases when: (1) on July 27, 1994, she received
a "Fully Successful" Performance Rating for 1993-1994; (2) on July 27,
1994, her supervisor (CS) accused her of demanding callers tell their
names when calling the office; (3) in August of 1994, CS hid telephone
bills, demanded she enter a drawer in his desk and told her not to make
personal phone calls; (4) CS required her to make entries on her time card
in pencil and then altered the entries in ink; and (5) on March 8, 1994,
CS told her that she could not leave work during a snow storm although
all other employees were allowed to leave. Complainant further asserts
that the incidents in claims (2)-(5) constitute harassment caused by
a hostile work environment. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
ISSUE PRESENTED
The issue on appeal is whether the agency properly found that complainant
failed to establish discrimination or harassment on the above-stated
bases.
BACKGROUND
The record reveals that complainant was employed as a Maintenance Worker
Helper, WG-4749-05, in the agency's 72nd Civil Engineering Group, Tinker
Air Force Base in Oklahoma. Due to unspecified medical restrictions,
complainant was detailed to clerical duties from May 14, 1992 through
December 18, 1994, and effective March 13, 1995, disability retirement
was approved at complainant's request. Believing she was a victim of
discrimination for events occurring prior to her retirement, complainant
sought EEO counseling and, subsequently, filed a formal complaint
on October 18, 1994. On December 8, 1994, the agency dismissed the
complaint under 29 C.F.R. � 1614.107(g) for failure to prosecute her
claim. Complainant appealed the dismissal, and the Commission vacated
the agency's decision and remanded the complaint for further processing.
Reed v. Department of the Air Force, EEOC Appeal No. 01952899 (August
22, 1995).
On remand, the agency requested clarifications of the claims in the
complaint, and complainant provided the requested information in
a letter dated September 24, 1995. Based on her letter, management
identified the specific claims, accepted the first three for further
processing but dismissed the last two for failure to state a claim
and untimely contact with an EEO counselor. Pursuant to complainant's
appeal, the Commission reversed the agency's decision and remanded the
claims for further processing. Reed v. Department of the Air Force,
EEOC Appeal No. 01961529 (May 2, 1996). By letter dated May 7, 1996,
the agency requested an investigation of complainant's five claims and
sought information from complainant, but she provided no response other
than to claim that she submitted an eight page letter in August of 1996.
The agency Investigator did not receive this document, and complainant
did not provide a replacement despite requests and extensions of time
with which to do so. At the conclusion of the investigation, complainant
was provided a copy of the investigative report and was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ).
The agency denied her request as it was untimely filed, and issued a FAD.
In the FAD, the agency initially found that while complainant's
supplemental statements from August of 1996 contained claims not
included in the formal complaint, there was no evidence that complainant
objected to the statement of issues as set forth in the agency's letter
of acceptance. The FAD then found that with respect to complainant's
claim of discrimination on the basis of disability, she retired due to
an unspecified disability, and furthermore, there was no evidence to
establish that she is a qualified individual with a disability covered
by the Rehabilitation Act. The FAD found that complainant failed to
establish a prima facie case of discrimination due to race, color or
sex on any of her claims, as there was insufficient evidence that the
events occurred as alleged, or that similarly situated employees outside
of her protected groups were treated differently. The FAD found that
complainant failed to establish a prima facie case of hostile work
environment harassment on claims (2)-(4), as the conduct in question
was not sufficiently severe or pervasive. Finally, the FAD found
that complainant failed to demonstrate a prima facie case of reprisal
discrimination, as the actions complained of, such as receiving a "Fully
Successful" appraisal rating, were not necessarily adverse.
The FAD further found that in any event, the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that: (1)
CS gave complainant a "Fully Successful" appraisal as her communication
skills were inadequate; (2) CS counseled complainant on her phone
manners after receiving complaints, he did not hide phone bills from
her but rather allowed her to locate bills in his desk to be orderly,
and he limited her personal calls as he received complaints about her
abusive nature; (3) she was allowed to review her time cards before
he entered her time in pen; and (4) she had to stay one hour later
than other employees on the snow day in question as she reported late
that day and was scheduled to work later than others. The FAD further
found that complainant failed to show that it was more likely than
not that management's explanations for their actions were a pretext
for discrimination.
The FAD also noted that although complainant made supplemental claims of
sexual harassment and constructive discharge that were not accepted for
investigation by the agency, she failed to present sufficient evidence to
establish a prima facie case of discrimination on either claim. In so
finding, the agency noted that complainant failed to provide evidence
that the alleged misconduct by CS was severe or pervasive enough to
create a hostile work environment, or that the working conditions were
so intolerable that a reasonable person would be compelled to retire.
On appeal, complainant contends that the FAD failed to consider many
of her claims. The agency stands on the record and requests that the
Commission affirm its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
complainant failed to establish a prima facie case of discrimination
on the bases of race, color or sex regarding any of her claims,
as there is no evidence of similarly situated employees not in her
protected classes who were treated more favorably. We further find
that complainant failed to establish a prima facie case of harassment
based on a hostile work environment, as there is insufficient credible
or corroborated evidence that the incidents in claims (2)-(5) were
sufficiently severe or pervasive to constitute a hostile work environment.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). We further
find that even assuming, arguendo, that complainant had established
prima facie cases of discrimination on the above-stated bases, the
agency credibly articulated legitimate, nondiscriminatory reasons for
its actions and complainant failed to establish by a preponderance of
the evidence that these reasons are a pretext for discrimination.
The Commission further finds that even assuming, arguendo, that
complainant's undisclosed lung or back impairments rendered her an
individual with a disability under the Rehabilitation Act in that she was
substantially limited from performing any major life activities, we find
that she failed to establish that she was discriminated against due to her
disability. Complainant alleged disparate treatment by the agency due to
her disability, but we find that the agency has articulated legitimate,
nondiscriminatory reasons for the actions taken against complainant,
as stated above, and complainant has not demonstrated that it was more
likely than not that the actions were pretextual in nature. Kim v. United
States Postal Service, EEOC Appeal No. 01973026 (February 5, 1999).<4>
Finally, with regard to complainant's contentions that she was sexually
harassed by CS and that the agency's actions constituted a constructive
discharge, we note that complainant raised these claims without contacting
the agency's EEO Counselor. The Commission specifically noted that
if complainant sought to pursue her claim that she was subjected to
a constructive discharge, she should contact an EEO Counselor. Reed
v. Department of the Air Force, EEOC Appeal No. 01961529 (May 2, 1996).
As complainant did not object to the scope of the agency's statement of
issues accepted for investigation after the Commission's second remand
order, which did not include claims of sexual harassment or constructive
discharge, we agree with the FAD that these issues were not properly
before the agency. We further note that regarding complainant's claim
of sexual harassment, she cannot raise an issue for the first time on
appeal before the Commission. We therefore discern no basis to disturb
the FAD's findings of no discrimination.
CONCLUSION
Therefore, after a careful review of the record and arguments and evidence
not discussed in this decision, the Commission AFFIRMS the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 14, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Commission notes that although the agency contends complainant's
appeal was untimely, a review of the record establishes that her Notice of
Appeal was received in a timely manner in the Office of Federal Operations.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
3 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
4 While the FAD found that employees who apply for retirement due to
disability are not covered by the Rehabilitation Act, we note that the
Commission's Enforcement Guidance, Notice No. 915.002 (February 12, 1997),
provides that representations of total disability made in connection with
an application for disability retirement do not serve as an absolute
bar to a Rehabilitation Act claim. See Cleveland v. Policy Management
Systems Corporation, 526 U.S. 795 (1999); see also Bortz v. Department
of Defense, EEOC Request No. 05950793 (September 12, 1997).