Judithv.Kincade, Appellant, William S. Cohen, Secretary, Department of Defense, (Army and Air Force Exchange Service), Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01981090 (E.E.O.C. Jan. 15, 1999)

01981090

01-15-1999

Judith V. Kincade, Appellant, William S. Cohen, Secretary, Department of Defense, (Army and Air Force Exchange Service), Agency.


Judith V. Kincade v. Department of Defense

01981090

January 15, 1999

) Appeal No. 01981090

) Agency Nos. 95.007E, 95.059E,

Judith V. Kincade, ) 95.090E, 95.091E,

Appellant, ) 95.092E, 95.093E,

) 95.094E, 95.095E,

) 95.111E, 95.112E.

) Hearing Nos. 100-96-7093X

William S. Cohen, ) 100-96-7094X

Secretary, ) 100-96-7095X

Department of Defense, ) 100-96-7096X

(Army and Air Force ) 100-96-7097X

Exchange Service), ) 100-96-7098X

Agency. ) 100-96-7099X

) 100-96-7100X

) 100-95-7719X

) 100-95-8392X

DECISION

Appellant timely initiated an appeal from a final agency decision (FAD)

concerning her equal employment opportunity (EEO) complaints of unlawful

employment discrimination on the bases of sex (female), reprisal (prior

EEO activity) and age (date of birth, January 22, 1944), in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.; and the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. � 621 et seq. The appeal is accepted in accordance

with EEOC Order No. 960.001. For the following reasons, the agency's

decision is AFFIRMED in part, as CLARIFIED, and REVERSED in part.

ISSUES PRESENTED

The issues on appeal concern whether the agency's final decision properly

rejected the Administrative Judge's (AJ) findings of discrimination

respecting nine of twenty-two issues, as set forth herein, while

accepting the AJ's recommended finding of no discrimination with respect

to the remaining thirteen issues.

BACKGROUND

The record reveals that during the relevant time, appellant was employed

as an Hourly Pay Plan Three (HPP-3) Specialized Sales Associate (SSA)

at the agency's Military Clothing Sales Store (MCSS), Heidelberg,

Germany. Believing she was a victim of discrimination and reprisal

respecting numerous events which occurred at the MCSS, appellant sought

EEO counseling on a number of occasions and, subsequently, filed ten

formal complaints of discrimination, as follows: one complaint on

October 3, 1994, one complaint on October 12, 1994, six complaints on

February 13, 1995, and two complaints on March 17, 1995.<1> These

ten complaints were consolidated for two investigations; and at the

conclusion of the agency's investigations, appellant was provided a copy

of the investigative reports, and she requested hearings before an AJ.

Appellant's complaints were consolidated for a single hearing before

an AJ, and the hearing was conducted on September 18 through 20, 1996,

in Heidelberg, Germany, and via telephone conference call on October 28,

1996. The AJ summarized appellant's various complaints, and formulated

twenty-two issues for resolution at the hearing, as follows:

1. Was the complainant discriminated against on the bases of her sex

(female) and/or her age (date of birth, January 22, 1944) when, on June

27, 1994, a male coworker made remarks to her in the presence of her

third-line supervisor?

2. Was the complainant discriminated against on the bases of her sex

and/or her age when, in July of 1994, the male coworker made additional

remarks to her?

3. Was the complainant discriminated against on the bases of her sex

and/or her age when, on a continuous basis, she was not allowed to train

new Specialized Sales Associates?

4. Was the complainant discriminated against on the bases of her sex

and/or her age when, on a continuous basis, she was denied training and

was denied the opportunity to perform new tasks?

5. Was the complainant discriminated against on the bases of her sex

and/or her age when, effective March 12, 1994, she was not selected for

the position of Supervisory Sales Associate (HPP-6)?

6. Was the complainant discriminated against on the bases of her sex

and/or her age when, on April 25, 1994, her third-line supervisor informed

her that derogatory remarks in her official personnel file would hinder

her promotion?

7. Was the complainant discriminated against on the bases of her sex

and/or her age when, during the period of January 1, 1994, through

October 12, 1994, she continually received written counseling?

8. Was the complainant discriminated against on the bases of her sex

and/or her age when, since October of 1993, her first-line supervisor

did not distribute her paychecks to her?

9. Was the complainant discriminated against on the bases of her sex

and/or her age when a Personnel Evaluation Report (PER) for the period

December 27, 1992, through February 28, 1994, completed on March 22, 1994,

was not given to her until April 25, 1994, and when in that PER she was

not recommended for promotion to Universal Annual Pay Plan positions or

higher level supervisory HPP positions?

10. Was the complainant discriminated against on the bases of her sex

and/or her age when, on June 29, 1994, she was accused by her third-line

supervisor of lying?

11. Was the complainant discriminated against on the bases of her sex

and/or her age when, on July 20, 1994, she was not given an incentive

award?

12. Was the complainant retaliated against for having engaged in protected

EEO activity when, on August 25, 1994, her third-line supervisor stood

over her while she reviewed her counseling file, or by the circumstances

surrounding her third-line supervisor's presenting a written counseling

to her and then destroying it on that date?

13. Was the complainant retaliated against for having engaged in protected

EEO activity when, on October 6, 1994, her third-line supervisor trained

a coworker but not her?

14. Was the complainant retaliated against for having engaged in

protected EEO activity when, on October 15, 1994, she was given a written

counseling?

15. Was the complainant retaliated against for having engaged in protected

EEO activity when pay information she first requested on October 17,

1994, was not provided to her?

Was the complainant retaliated against for having engaged in protected

EEO activity when she was never allowed to go to the agency's personnel

office on official time?

17. Was the complainant retaliated against for having engaged in protected

EEO activity when, on November 2, 1994, she was given a written counseling

by her second-line supervisor?

18. Was the complainant retaliated against for having engaged in protected

EEO activity when her third-line supervisor used errors the complainant

had made as training material for other employees?

19. Was the complainant retaliated against for having engaged in protected

EEO activity when, on December 12, 1994, she was directed to falsify

the time and attendance record?

20. Was the complainant retaliated against for having engaged in

protected EEO activity when, on December 15, 1994, she was issued a

written counseling by her second-line supervisor?

21. Was the complainant retaliated against for having engaged in protected

EEO activity when a decision was made to reassign her to the agency's

main store in Heidelberg, Germany, effective December 31, 1994?

22. Was the complainant retaliated against for having engaged in

protected EEO activity when, on December 30, 1994, her third-line

supervisor accused her of making an illegal purchase?

See AJ's recommended decision (RD) at pages 4-6.

Based on the record and testimony, the AJ's RD contained seven recommended

findings, as follows:

This Administrative Judge recommends a finding of no sex or age

discrimination in Issues Nos. 1, 2, 3, 4, 5, 7, and 8.

B. This Administrative Judge recommends a finding of no sex discrimination

in Issue No. 9.

C. This Administrative Judge recommends that the agency dismiss Issues

Nos. 6 and 10, because the complainant was not an aggrieved individual

within the meaning of Title VII or the ADEA.

This Administrative Judge recommends a finding of no reprisal in Issues

Nos. 12, 13, 16, and 19.

E. This Administrative Judge recommends a finding of age discrimination

in Issue No. 9.

This Administrative Judge recommends a finding of sex and age

discrimination in Issue No. 11.

This Administrative Judge recommends a finding of reprisal in Issues

Nos. 14, 15, 17, 18, 20, 21, and 22.

See AJ's RD at pages 65-66.

Concerning the AJ's finding of age discrimination in issue 9, as provided

by finding E. above, the AJ concluded that the explanation offered by

appellant's first and third level supervisors (Ms. N. and Ms. W.) for

the appellant's delay in receiving her performance evaluation rating

(PER), namely, that the MCSS was shorthanded and faced a heavy workload,

and that another employee, C1, was being transferred from the MCSS,

and was therefore required to receive her PER prior to her departure,

was a pretext for age discrimination. In reaching this conclusion, the

AJ noted that Ms. N. could not have known that C1 was leaving because C1

announced her departure suddenly, on April 8, 1994, and left the MCSS on

April 9, 1994. Similarly, the AJ noted that Ms. W. was not aware of C1's

subsequent rehire by the agency at another facility, and therefore could

not have based her decision to provide a timely PER to C1 for this reason

if she was unaware of C1's re-employment status until after her departure.

The AJ concluded that Ms. N. and Ms. W.'s reasons for their delay in

providing appellant her PER were a pretext for age discrimination.

The AJ further concluded that Ms. N. and Ms. W. failed to proffer a

legitimate, nondiscriminatory reason for their decision to not recommend

appellant for a higher level position. The AJ noted that C1 had been

recommended for promotion to a higher level position when C1 had only

been with the agency five months, whereas appellant, who had worked

for the MCSS eighteen months, was not recommended for promotion to a

higher level position. The AJ also noted that appellant had previously

been interviewed for a higher level position, and that Ms. W. failed

to explain why she concurred with Ms. N.'s decision not to recommend

appellant for promotion to higher level positions.

Concerning the AJ's finding of age and sex discrimination with respect to

issue 11, as provided by finding F. above, the AJ noted that appellant,

who was nominated and approved for an incentive award, nonetheless did not

receive the award during the July 20, 1994, ceremony, whereas similarly

situated younger and male employees, who were subject to the same

incentive award policy, received incentive awards. The AJ then noted that

the agency failed to offer a reasonable explanation as to why appellant

did not receive an incentive award. The AJ noted that the General Manager

of the facility (Mr. S.), testified that he routinely approves incentive

awards, and that he did not recall disapproving an award for appellant.

The AJ noted that Ms. W., however, testified that she concurred with

Ms. N.'s recommendation for an award for appellant, and she only

found out a week before the ceremony that the award was disapproved by

Mr. S., but did not question why it was disapproved. Ms. N., however,

testified that she was informed by Ms. W. that Mr. S. told Ms. W. that

he would not approve the recommendation because appellant wasn't a team

player and that she did not deserve an incentive award. Finding their

testimony to be inconsistent, the AJ concluded that absent a legitimate,

nondiscriminatory reason, appellant established that her failure to

receive an incentive award was a pretext for sex and age discrimination.

Concerning the AJ's finding of reprisal discrimination with respect to

issues 14, 15, 17, 18, 20, 21 and 22, as provided by finding G. above,

the AJ noted that viewing the facts in each case as a whole, the relevant

management officials were, more likely than not, motivated by retaliatory

animus respecting each of the above listed issues.

The agency's FAD adopted the AJ's recommended findings as set forth in

findings A. through D. of the RD. However, the agency rejected the

AJ's findings of discrimination as outlined in findings E. through

G. of the RD. Specifically, with respect to issue 9, as provided

by finding E. in the AJ's RD, the agency concluded that while the AJ

recognized that C1 was treated more favorably when she received her

PER earlier than appellant, the agency found that two other individuals

(C2 and C3), also outside of appellant's protected age group, received

their PER's late. The agency further found that appellant's prior PER

was not late. Thus, the agency concluded that age animus was not the

motivating factor behind appellant's untimely receipt of her PER.

The agency's FAD neither referred to nor provided a rationale as to

why it did not adopt the AJ's finding of discrimination concerning the

remaining aspect of issue 9, namely, the agency's failure to recommend

appellant to higher level positions.

Concerning issue 11, as provided by finding F. in the AJ's RD, the agency

concluded that although the AJ noted that other individuals outside her

protected class received awards, the record demonstrated that in addition,

individuals within appellant's protected class (sex) received awards,

and that therefore, her failure to receive an award was not motivated

by discriminatory animus on the basis of her sex.

Concerning the seven remaining issues, as set forth in finding G. in

the AJ's RD, the agency determined upon its own review of the record and

hearing testimony that appellant failed to establish by a preponderance

of the evidence that retaliation more likely than not motivated the

agency's actions.

On appeal, appellant raises numerous arguments which, in sum, contend

that the AJ's RD was proper and the findings of discrimination by the AJ

as set forth in E. through G. of his RD should be reinstated. 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 the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. With respect to the AJ's findings of

discrimination in findings E. through G., which the agency reversed in

its FAD, we note that there is ample evidence in the record to support

the AJ's findings of fact and conclusions of law, and the agency has not

presented sufficient evidence demonstrating that the AJ's findings were

clearly erroneous factually, or as a matter of law. We first note that

concerning issues one and two, the AJ adequately set forth the facts

concerning appellant's allegations in the RD.<2>

Concerning issue 9, we note that contrary to the agency's contention in

its FAD, C2 received her PER approximately one week after it was due, and

further, neither C2 nor C3 are similarly situated to appellant because

neither received their PER's during the same time period as appellant.

Finally, we note that appellant's prior PER, though received timely,

was approved by a different supervisor who was not one of the alleged

discriminating officials concerning the PER at issue in this appeal.

We therefore agree with the AJ that the agency's reasons for its delay

in providing appellant her PER were inconsistent, not supported by the

record as a whole, and more likely than not motivated by age animus.<3>

We further find that absent a legitimate explanation from the agency

concerning the other aspect of issue 9, the agency's failure to recommend

appellant for higher level positions, the AJ's recommended finding of

discrimination was appropriate.

Concerning issue 11, we note that the AJ based his decision that

appellant was discriminatorily denied an award on the inconsistent

testimony provided by Ms. W. and Mr. S. The agency, however, attempted

to demonstrate a lack of discriminatory animus by relying solely on

Ms. N.'s testimony that she was informed by Ms. W. that appellant's

award was canceled because Mr. S. determined she was not a team player.

However, Ms. N.'s testimony contradicted the testimony of Ms. W., who had

indicated that she did not know why the award was canceled. Further,

Ms. N.'s testimony contradicted that of Mr. S., who testified that he

did not remember ever refusing an award for appellant. Compare Ms. N.'s

testimony (Hearing Transcript (HT) page 952), with Ms. W.'s testimony (HT

page 789) and Mr. S.'s testimony (HT page 683). As the AJ concluded, we

find the agency's reliance on Ms. N.'s testimony alone to be unavailing.

We agree with the AJ that more likely than not, discriminatory animus

on the bases of sex and age motivated appellant's failure to receive

an award.

Concerning the remaining issues, wherein the AJ found that more likely

than not, retaliation motivated the events listed in the issues contained

in finding G. of the AJ's RD, we similarly find the agency's stated

reasons for declining to adopt the AJ's rationale to be unavailing.

None of the reasons proffered by the agency establish that the AJ's

findings of fact or conclusions of law were clearly erroneous. Therefore,

we discern no basis to disturb the AJ's findings of discrimination which

were based on a detailed assessment of the record and the credibility of

the witnesses. See Anderson v. Bessemer City, 470 U.S. 564, 575 (1985);

Saramma v. Department of Veterans Affairs, EEOC Request No. 05930131

(September 2, 1993); Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987).

CONCLUSION

Therefore, after a careful review of the record, including appellants

arguments on appeal, the agency's response, and arguments and evidence

not discussed in this decision, the Commission AFFIRMS the FAD to the

extent that it adopted the AJ's findings set forth in items A. through

D. in the AJ's RD; AFFIRMS the FAD as CLARIFIED, noting that we dismiss

issues one and two on the procedural ground that appellant failed to state

a claim of harassment based on sex; and REVERSES the FAD's conclusion

that the agency did not discriminate or retaliate against appellant as

provided by items E. through G. in the AJ's RD. The Commission REMANDS

the matter to the agency to take remedial actions in accordance with

this decision and ORDER below.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

The agency is directed to conduct training for relevant agency management

officials, including, but not limited to, Ms. N., Ms. W. and Mr. S.,

who were found to have discriminated and retaliated against appellant.

The agency shall address these employees' responsibilities with respect

to eliminating discrimination and retaliation in the workplace and all

other supervisory and managerial responsibilities under equal employment

opportunity law.

The agency shall, if appellant is reinstated to a position with the

agency, ensure that it issues timely PER's to appellant.<4>

The agency shall present appellant with the award for which she was

recommended, but did not receive, on or around July 20, 1994.

The agency shall ensure that the written counseling appellant received

on October 15, November 2, and December 15, 1994, and which were at

issue in her complaints, are purged from all relevant agency records

and destroyed.

To the extent such records are still in existence, the agency shall

provide appellant with relevant pay information requested, but not

received, on October 17, 1994.

The agency shall, if appellant is reinstated to a position with the

agency, ensure that during training, examples of errors for demonstrative

purposes are not linked to appellant or any particular individual.

The agency shall, if appellant is reinstated to a position with the

agency, ensure that she be offered a position as a Specialized Sales

Associate within the MCSS in Heidelberg, Germany.

The agency shall, if appellant is reinstated to a position with the

agency, ensure that it takes action to recommend appellant to higher

level positions within the MCSS.

The agency shall refrain from subjecting any employee, including

appellant, should she be reinstated to a position with the agency, to

retaliatory or discriminatory treatment with respect to the terms and

conditions of employment.

1. The agency shall conduct a supplemental investigation on the issue

of appellant's entitlement to compensatory damages and shall afford

appellant an opportunity to establish a causal relationship between

the incidents of discrimination and any pecuniary or non-pecuniary

losses. See Carle v. Department of the Navy, EEOC Appeal No. 01922369

(January 5, 1993).<5> The appellant shall cooperate in the agency's

efforts to compute the amount of compensatory damages, and shall provide

all relevant information requested by the agency. The agency shall issue a

final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110.

The supplemental investigation and issuance of the final decision shall

be completed within one hundred and twenty (120) calendar days of the

date this decision becomes final. A copy of the final decision must be

submitted to the Compliance Officer, as referenced below.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due appellant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Military Clothing Sales Store (MCSS),

Heidelberg, Germany, copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 19848, Washington,

D.C. 20036. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the appellant.

If the agency does not comply with the Commission's order, the appellant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The appellant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.408,

1614.409, and 1614.503(g). Alternatively, the appellant has the right to

file a civil action on the underlying complaint in accordance with the

paragraph below entitled "Right to File A Civil Action." 29 C.F.R. ��

1614.408 and 1614.409. A civil action for enforcement or a civil action

on the underlying complaint is subject to the deadline stated in 42

U.S.C. � 2000e-16(c)(Supp. V 1993). If the appellant files a civil

action, the administrative processing of the complaint, including any

petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.

ATTORNEY'S FEES (H1092)

If appellant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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

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 the

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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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. In the alternative, you may file

a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the

date you filed your complaint with the agency, or your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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 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:

Jan 15, 1999

_______________ ___________________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated __________ which found that

a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. has occurred at

the agency's Military Clothing Sales Store (AAFES), Heidelberg, Germany.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of the person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions or privileges of employment.

The AAFES supports and will comply with such Federal law and will not

take action against individuals because they have exercised their rights

under law.

The AAFES was found to have discriminated against the individual

affected by the Commission's findings on the basis of age when she was

not provided her performance evaluation report in a timely manner and

when she was not recommended for promotion to higher or supervisory

level positions. The agency was also found to have discriminated

against this individual on the bases of sex (female) and age when she

was not given an incentive award on July 20, 1994. Finally, the agency

was found to have unlawfully retaliated against the above-referenced

individual when: (1) she was given written counseling on October 15,

1994, November 2, 1994, and December 15, 1995, (2) pay information

she requested was not provided to her, (3) management officials used

her errors as training material for other employees, (4) she was

reassigned to the agency's main store in Heidelberg, Germany, and

(5) a management official accused her of making an illegal purchase.

The agency shall therefore remedy the discrimination by providing

the affected individual with compensatory damages as appropriate,

destroying written counseling records, providing her with the award she

was denied, recommending her for promotion to higher level positions,

and ensuring that she receives timely performance evaluation reports,

Finally, the agency shall provide appropriate sensitivity training on

equal employment opportunity law in the federal workplace to relevant

management officials. The AAFES will ensure that officials responsible

for personnel decisions and terms and conditions of employment will abide

by the requirements of all Federal equal employment opportunity laws.

The AAFES will not in any manner restrain, interfere, coerce, or

retaliate against any individual who exercises his or her right to

oppose practices made unlawful by, or who participates in proceedings

pursuant to, Federal equal employment opportunity law.

Date Posted:

Posting Expires:

29 C.F.R. Part 1614

1 We note that the facts respecting each issue are adequately set forth

in the AJ's recommended decision (RD) and will only be repeated herein to

the extent necessary to resolve this appeal.

2 We note that the agency and AJ analyzed issues one and two as

allegations of hostile environment sexual harassment. We find, however,

that the conduct alleged here, i.e., comments about the agency dress

code and appellant's sleeveless dress, are more appropriately classified

as allegations of harassment based on sex. We also find that under the

analysis set forth in Riden, appellant's allegations, even if factual

and taken to be true, are insufficient to state a claim of harassment

based on sex where one or two isolated comments of the kind alleged

here are not sufficiently severe or pervasive so as to constitute a

hostile environment on the basis of sex. See Riden v. Department of

the Treasury, EEOC Request No.05970314 (October 2, 1998). Accordingly,

the Commission dismisses issues one and two for failure to state a claim

under 29 C.F.R. � 1614.107(a).

3 We note that the AJ cited to Loeb v. Textron, Inc., 600 F.2d 1003

(1st Cir. 1979) in his RD. See RD at page 21, n.10.

4 We note that the AJ observed in his RD that appellant was terminated

from the MCSS while on leave without pay, and that her termination is

the subject of a separate complaint and therefore is not at issue in

this appeal. See RD at page 57, n.24.

5 In Jackson v. United States Postal Service, EEOC Appeal No. 01923399

(November 12, 1992); request for reconsideration denied, EEOC Request

No. 05930306 (February 1, 1993), the Commission held that Congress

afforded it the authority to award such damages in the administrative

process. See also Cobey Turner v. Department of the Interior, EEOC Appeal

Nos. 01956390 and 01960518 (April 27, 1998).