Mary D. Godfrey, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01970229 (E.E.O.C. Mar. 29, 2000)

01970229

03-29-2000

Mary D. Godfrey, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Mary D. Godfrey v. Department of the Air Force

01970229

March 29, 2000

Mary D. Godfrey, )

Complainant, )

) Appeal No. 01970229

v. ) Agency No. RJOJ94001

) Hearing No. 360-94-8367X

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final decision

concerning her complaints of unlawful employment discrimination on the

bases of race (Black), color (Black), national origin (African-American),

sex (female), reprisal (prior EEO activity), and age (d.o.b., August

24, 1938), 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.<1>

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 final agency decision.

ISSUE PRESENTED

The issue presented herein is whether complainant has established,

by preponderant evidence, that she was discriminated against on the

above-referenced bases (1) when she was allegedly subjected to a hostile

working environment by her supervisor; and (2) when, on November 19,

1993, she was forced to retire from federal service.

BACKGROUND

Complainant, formerly employed by the agency as Guidance Counselor

at the Education Service Center (ESC), filed two formal complaints;

one on November 30, 1993, the other on January 5, 1994, in which she

raised what has been identified as the issue presented. Pursuant to

the Commission's regulations, complainant requested a hearing before

an EEOC Administrative Judge (AJ). After the hearing, which occurred

on May 8, 1996, the AJ issued a recommended decision, dated August 7,

1996, finding no discrimination regarding both complaints. In its

final decision, the agency adopted the AJ's findings and conclusions.

It is from that decision that complainant appeals.

The evidence of record indicates that, in September 1993, complainant and

her supervisor engaged in a heated argument concerning the scheduling of

approximately one hundred requests for counseling services.<2> During

the course of the argument, the supervisor yelled at the complainant

to leave his office. Complainant filed her first formal complaint on

this incident.

In November 1993, complainant and her supervisor arranged to take

annual leave for the Thanksgiving holiday. On November 19, 1993, the

supervisor suddenly elected to take early retirement when his supervisor

(the Colonel) canceled his approved leave for Thanksgiving.

Complainant was next in seniority at the ESC. The Colonel requested that

she cancel her plans for annual leave. He explained to her that her

supervisor had retired earlier that day, thereby leaving them shorthanded.

Complainant indicated to the Colonel that it would be very difficult

for her to cancel her Thanksgiving plans as she had already purchased

airline tickets. When the Colonel refused to withdraw his request

complainant also opted to take immediate early retirement. In January

1994, complainant filed a second formal complaint which claimed that

she had been forced to retire or was constructively discharged.<3>

Regarding complainant's claim of harassment, the AJ found that the

supervisor's behavior was not severe enough to rise to the level of

harassment. She noted that when the supervisor yelled at complainant

to leave his office, he did not resort to epithets, slurs, negative

stereotyping, or any other indication of harassing conduct.

On the issue of the constructive discharge, the AJ found that complainant

failed to establish a prima facie case of discrimination. She reasoned

that complainant's retirement was not based on race, color, national

origin, sex, and age discrimination because the Colonel first asked the

supervisor (Caucasian, white, male, over 40) to cancel his leave, and

that it was only after the supervisor retired that complainant, as the

employee next in seniority, was approached. Regarding complainant's

reprisal claim, the AJ found that complainant failed to establish a

prima facie case because she retired voluntarily; therefore, there was

no adverse action that could have been attributed to the agency.

ANALYSIS AND FINDINGS

All post-hearing factual findings by an A J will be upheld if supported

by substantial evidence in the record. 64 Fed. Reg 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 614.405(a)). Substantial evidence is

defined as "such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Universal Camera Corp. v. National

Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).

A finding that discriminatory intent did not exist is a factual finding.

See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that theAJ's

recommended decision summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were

in retaliation for her prior EEO activity, or were motivated by

discriminatory animus toward complainant's race, color, national origin,

sex, or age. As such, we discern no basis to disturb the AJ's recommended

findings and conclusions or the agency's adoption thereof.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response thereto, and arguments

and evidence not specifically addressed in this decision, we affirm the

final agency decision.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 29, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 Requests for counseling were backlogged because of staffing shortages

in the ESC.

3 The Merit Systems Protection Board (MSPB) has jurisdiction over mixed

case complaint allegations which allege discrimination based, among

other things, on race, color, national origin, sex, age, and reprisal

regarding a constructive discharge if the MSPB finds a resignation was a

constructive discharge. 5 C.F.R. � 1201.3. The agency's final decision

provided appeal rights to the EEOC. Since complainant's appeal has been

pending in the EEO process for several years, the Commission will assume

jurisdiction over this issue. It would better serve the interests of

judicial economy to address the issue of constructive discharge at this

time. See, Burton v. Department of Agriculture, EEOC Appeal No. 01932449

(October 28, 1994).