Dawn P. Moderow, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 3, 1999
01974959 (E.E.O.C. Sep. 3, 1999)

01974959

09-03-1999

Dawn P. Moderow, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Dawn P. Moderow, )

Appellant, )

)

v. ) Appeal No. 01974959

) Agency No. SAN-96-AF-0107-E

F. Whitten Peters, ) Hearing No. 360-96-8702X

Acting Secretary, )

Department of the Air Force, )

Agency. )

________________________________)

DECISION

Appellant timely appealed the agency's final decision that it had not

discriminated against him in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. In her complaint,

appellant alleged that the agency discriminated against her on the

basis of reprisal (prior EEO Activity), when she was discharged as a

NF-3 Writer in the Marketing Office of the 76th Service Squadron at

Kelly Air Force Base. This appeal is accepted by the Commission in

accordance with EEOC Order No. 960.001. For the following reasons,

the agency's final decision is AFFIRMED.

Appellant was employed by the agency as a NF-3 Writer in the Marketing

Office for approximately five years. The position of Chief of the

Marketing Office (position) had been vacant since 1992, and appellant

had served as acting supervisor of that office for over two years.

Subsequently, the position was filled. Appellant competed for

the position, but was not selected. The selected individual became

appellant's first level supervisor (S1), and appellant's former direct

supervisor, became her second level supervisor (S2).

The record reveals that in April 1995, appellant filed an informal

EEO complaint against the agency alleging discrimination based on sex,

when she was not selected for the position by S2 and another selecting

official. On August 14, 1995, S1 (the selectee in the challenged action)

issued appellant a Notice of Proposed Removal, which stated that her

termination would be effective August 29, 1995.

Following an investigation, appellant requested a hearing before an

Equal Employment Opportunity Commission (EEOC) administrative judge

(AJ). After the hearing, the AJ issued a Recommended Decision (RD)

finding no discrimination. On May 6, 1997, the agency issued a final

decision, adopting the AJ's findings of no discrimination. It is from

this decision that appellant now appeals.

The AJ found that appellant established a prima facie case of reprisal.

Appellant had engaged in prior EEO activity. S2 knew about it, and told

S1, or confirmed to her that appellant had filed an EEO complaint over

appellant's non-selection for S1's position. Within four months after

filing this complaint, appellant, who had an otherwise clean disciplinary

record and �perfect appraisal� was terminated. However, the AJ found that

appellant failed to establish that the agency's articulated legitimate

nondiscriminatory reasons for discharging appellant were pretextual.

The AJ determined that appellant was insubordinate, and refused to work.

S1 counseled appellant regarding editing errors, missed deadlines,

and attitude problems. Appellant also had numerous other performance

problems. When confronted by S1 concerning a missed commercial

sponsorship deadline, appellant refused to cooperate. Furthermore,

although appellant was informed that if her performance during the time

frame between her Proposed Notice of Termination and the effective date

of her termination was satisfactory, her termination might be withdrawn,

appellant complained that the work she was assigned was demeaning, and

she requested leave rather than perform the work. Additionally, the

AJ found insufficient evidence that S2 instigated appellant's termination.

The AJ concluded that S1 was not motivated by retaliatory intent when

terminating appellant, rather, S1 determined that under the circumstances,

appellant simply �would not work under her supervision�. Appellant

resented working for S1, which was further evidenced when appellant

re-wrote her job description, crossed out S1's name, and inserted

S2's name. Also, appellant had directly, and subtly, challenged S1's

authority on several occasions, and showed no intention of changing her

attitude. S1 was concerned about insubordination and dissension within

the marketing group, as a result of appellant's negative comments to other

marketing employees. Furthermore, appellant exercised her own discretion

and professional opinion, which conflicted with S1's instructions.

Additionally, the AJ found that appellant as a NAF employee was akin to

an �employee-at-will�, and she could be terminated for insubordination.

Although, the AJ believed appellant's termination was harsh, he found that

Title VII was not a shield against all harsh treatment in the work place.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission

finds that the AJ's RD sets forth the relevant facts, and properly

analyzes the appropriate regulations, policies, and laws applicable to

appellant's complaint. Therefore, the Commission discerns no basis to

disturb the AJ's findings of no discrimination. Accordingly, it is the

decision of the Equal Employment Opportunity Commission to AFFIRM the

agency's final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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 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:

9/03/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations