01986450
05-12-2000
Margie C. Rodriguez, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Margie C. Rodriguez v. Department of the Air Force
01986450
May 12, 2000
Margie C. Rodriguez, )
Complainant, )
) Appeal No. 01986450
v. ) Agency No. AL900980755
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
The complainant timely initiated an appeal of a final agency decision
dated July 20, 1998, concerning her complaint of unlawful employment
discrimination on the basis of age (DOB September 1, 1955), in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> The complainant alleges she was discriminated
against when: (1) she was denied medical attention on April 16, 1997; and
(2) she was forced to resign on April 25, 1997. The appeal is accepted
pursuant to 64 Fed. Reg. 37, 644, 37, 659 (1999) (to be codified at 29
C.F.R. � 1614.405). For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, the complainant was
employed as a waitress, at the agency's Smokin' Joe's Bar-B-Que Grill,
37th Services Squadron, Lackland AFB, Texas facility. The complainant
alleged that after she fell while on the job, her supervisor failed to
offer her medical attention and that she was yelled at and physically
poked to the point that she had to resign.
Believing she was a victim of discrimination, the complainant sought
EEO counseling and, subsequently, filed a complaint on June 17, 1997.
At the conclusion of the investigation, the complainant failed to respond
to the agency's letter informing her of her right to request a hearing
or an immediate final decision. The agency issued its final decision
and the complainant's representative received it on August 4, 1998.
The agency concluded that the complainant's allegations were sufficient
to raise the issue of hostile work environment harassment based on age.
Without addressing whether she established a prima facie case, the agency
concluded that it had articulated a legitimate nondiscriminatory reason
for its actions and that the complainant failed to show the reasons
were pretext.
On appeal, the complainant makes no new arguments, but requests a
hearing.<2> The agency requests that we affirm its final decision
finding no discrimination.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that the complainant failed to show
that she was discriminated against because of her age.
In reaching this conclusion, we note that in her sworn affidavit, the
complainant averred she was forced to resign because her supervisor
screamed at her to pick up her food orders and the acting supervisor
was constantly elbowing her as she passed her. Investigative File (IF)
at 39-43. She further averred that the supervisor: 1) made comments
about her to co-workers; and 2) stated that customers had made comments
about not hiring any more waitresses who were in their forties. Id.
The complainant averred that both her supervisor and the acting supervisor
treated a younger male waiter more favorably. Id. The complainant
further averred that when she fell on April 16, 1997, her supervisor
should have taken her to the doctor's because she had called Emergency
Medical Services when the acting supervisor fell.
We find that the agency correctly analyzed the complainant's complaint
as one of constructive discharge. The test adopted by the Commission to
establish a constructive discharge requires the complainant to show that:
1) a reasonable person in her position would find working conditions
intolerable; 2) conduct that constituted a prohibited discriminatory
act created the intolerable working conditions; and 3) her resignation
resulted from the intolerable working conditions. Taylor v. AAFES,
EEOC Request No. 05900360 (July 20, 1990).
Here, the record contains a sworn affidavit by the complainant's
supervisor, averring that she did not treat the complainant differently
than any other employee, except that the complainant required more
assistance and guidance because this was her first assignment as
a waitress. Moreover, the supervisor averred that she did not scream
at the complainant, nor did she see anyone intentionally elbow her and
that she was not aware of the complainant's age because she had been
transferred into that organization. The record shows that several
of the complainant's co-workers and the supervisor averred that when
food orders were ready, the name of the waitress would be called out,
that sometimes the place was noisy which required the waitress's name
to be called out in a loud voice. They also averred that at one time
sodas were in the kitchen and employees might bump each other while
passing into and out of the kitchen. The record further shows that the
complainant's co-workers all averred that the supervisor treated everyone
the same and that not one of them averred hearing the supervisor scream
at the complainant or saw anyone intentionally elbow her. IF at 44-68.
The record also shows that both the supervisor and the acting supervisor
averred that on the day the complainant fell, she got right back up and
completed her shift. The supervisor averred that when the complainant
fell, she immediately asked her if she was okay to which the complainant
responded that she was okay. The record shows that the complainant was
asked several more times during that shift if she was okay and each time
she responded she was.
The Business Operations Flight Chief who oversaw Smokin' Joe's averred
that the complainant's employment was terminated for abandonment because
she walked off the job and did not return. IF at 59. The record contains
the a copy of Air Force Manual 34-310, wherein Chapter 5 section 6 states
that "an employee who fails to report for work or notify management for
three consecutive workdays without a reasonable explanation is considered
to have resigned." IF at 85.
The Commission finds that the complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. In reaching this conclusion, we note
that there is no evidence in the record to support the complainant's
claims of discrimination and hostile work environment culminating in
her forced resignation.
Therefore, after a careful review of the record, including the
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final decision finding no discrimination.
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:
May 12, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________________ _____________
Date
1 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.
2 We note that the record shows that the agency's notice of rights along
with the investigative file were received by the complainant on April
24, 1998. The notice properly informed the complainant of her right
to request a hearing or an immediate final decision by the agency on
the record. On appeal, the complainant asserts that she was ill and
lost her house, but she knows she is entitled to a hearing. There is
no right to a hearing at the appeal level. Moreover, we find that the
complainant was given notice of her right to request a hearing and has
not shown why she could not exercise that right in a timely manner.
The complainant has presented no medical or other evidence that she was
so incapacitated at the time she was required to exercise her hearing
rights that she could not do so.