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).