Cathy Reed, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01972729 (E.E.O.C. Apr. 14, 2000)

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).