0120081004
06-17-2010
Minnie Mae Howell, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Minnie Mae Howell,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081004
Hearing No. 430-2006-00005X
Agency No. 5V1C05007
DECISION
On December 18, 2007, Complainant filed an appeal from the Agency's
November 15, 2007 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge's decision finding
that Complainant was not discriminated against and harassed on the bases
of her sex and in reprisal for prior EEO activity was correct.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Maintenance Mechanic Supervisor, WS-4749-10, at the Agency's Seymour
Johnson Air Force Base facility in North Carolina. Complainant had
previously filed EEO complaints against the Agency in which she had
alleged that she was not selected for a WL-10 work leader position in
July 2000 and for the WS-10 Maintenance Mechanic Supervisor position in
September 2000 (on which she prevailed), and was subjected to harassment
between the period of April 2003 and February 2005.
On May 7, 2005, Complainant filed an EEO complaint (which was later
amended) alleging that she was discriminated against and harassed on
the bases of sex (female) and reprisal for prior protected EEO activity
under Title VII when:
1. On March 25, 2005, her first level supervisor (MO-1) presented her
with documents regarding sick leave;
2. On April 4, 2005, MO-1 went to the shop to give out work assignments
to her troops;
3. On April 5, 2005, MO-1 tried to remove shop personnel from assigned
tasks to work on a contractor's job;
4. On April 5, 2005, MO-1 would not allow personnel to return to her
shop;
5. On April 5, 2005, MO-1 directed her to perform a contractor's job;
6. On April 5, 2005, MO-1 and MO-2 did not allow her to send personnel
to training seminars;
7. On May 9, 2005, she received a proposed Letter of Reprimand;
8. On May 9, 2005, she received a 14-day suspension for public honesty;
9. For 2004/2005, she received an incorrect annual appraisal;
10. On June 15, 2005, MO-1 interfered in a National Electrical Code
(NEC) class that she had organized;
11. On June 21, 2005, MO-1 informed her that another shop member, a Staff
Sergeant (male), would be loaned to the Abatement Shop indefinitely;
12. On June 29, 2005, she learned that MO-1 discussed leave procedures
with Employee A (male);
13. On June 29, 2005, an Agency official directed her to have a night
crew during the week of June 29, 2005, and every other month thereafter;
14. On June 29, 2005, MO-2 gave contractors unrestricted access to the
Civil Engineer Office (CEO) mechanical rooms in response to her asking
customer service to do their job;
15. On July 5, 2005, she learned that MO-1 did not inform her of a tasking
from MO-2 on June 30th to upgrade lights around the jogging track;
16. On July 5, 2005, MO-1 told her to research information for a motor
repair job he was tasked to complete by close of business (COB) that
day and gave her an hour to get the information to him;
17. On July 25, 2005, she received a seven-day suspension;
18. On July 27, 2005, MO-1 told her to remove Employees B (male) and C
(male) from their worksite and send them to the First Sergeant's Office;
19. On August 8, 2005, MO-1 told her that MO-2's door was closed to her;
20. On August 9, 2005, she was "thrown out" of a Seymour Johnson Air
Force Base (SJAFB) training class because of MO-1's interference;
21. On August 11, 2005, MO-1 gave her two write-ups on her Employee's
Brief for failure to follow his verbal instructions and proper use of
the chain of command;
22. On September 29, 2005, MO-1 presented her with negative feedback
regarding her work performance; and
23. On November 10 and 22, 2005, MO-1 denied her leave requests.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing on January 16, 2006. The AJ held a hearing from
June 27, 2006 through June 30, 2006, at which 12 witnesses testified.
The AJ issued a decision on September 28, 2007. In her decision, the
AJ noted that the gravamen of Complainant's claim was that "Agency
officials continually undermined her ability to supervise her shop
and continually harassed her in an attempt to force her to leave the
electrical shop." The AJ grouped Complainant's 23 claims into five areas:
1) MO-1 gave orders to Complainant and her employees; 2) MO-1 addressed
her leave requests; 3) MO-1 addressed her training opportunities;
4) MO-1 disciplined Complainant; and 5) MO-1 evaluated Complainant.
She then found facts and analyzed the complaint using these categories
to conduct her analysis.
The AJ assumed that Complainant had established her prima facie cases
of sex and reprisal discrimination. She then found that the Agency had
provided legitimate, nondiscriminatory reasons for its actions. The AJ
found, based on the testimony at hearing and the evidence in the record,
that the Agency stated it had the responsibility and authority to address
Complainant's leave, conduct and performance. The Agency also posited
that it had the responsibility and authority to give Complainant, and her
subordinates, orders and directives to provide for the best needs of the
service. The Agency claimed that MO-1 and other upper level management
would best know how to handle the training of personnel due to budget
cuts and class sizes. Finally, the Agency stated that Complainant was
disciplined (counseled, reprimanded or suspended) according to her own
conduct and behavior as a supervisor. The AJ noted that Complainant's
own "apathetic demeanor" and testimony at hearing tended to reinforce
the Agency's legitimate, nondiscriminatory reasons.
The AJ analyzed Complainant's attempt to show that the Agency's reasons
were pretext for discrimination. She found that Complainant failed to
demonstrate pretext, and noted that due to the history of Complainant's
work experience at the Agency, and the several contentious EEO cases she
has filed (and prevailed in), "all participants are highly defensive when
interacting with each other." The AJ also noted that Complainant does
not have "carte blanche to supervise her shop with complete autonomy,
to not properly address leave matters with [MO-1], to have each and
every request for training granted, or to be immune from properly
warranted discipline and evaluations." The AJ then addressed, by the
aforementioned five categories, whether the Agency acted appropriately
with respect to its actions towards Complainant.
Finally, the AJ looked at Complainant's complaint in terms of her claim of
harassment on the bases of her sex and in reprisal for prior EEO activity
and found that she had not established a prima facie case of harassment.
The AJ concluded that Complainant had not shown that the Agency was
motivated by discriminatory reasons for its actions. The AJ concluded
that Complainant had not been discriminated against on the bases of her
sex and retaliation.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that she was subjected to discrimination
as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ's decision was incorrectly
written because of a lack of specificity in the AJ's findings of
fact, and a lack of specificity in her analysis of the claims and the
Agency's response to those claims. Complainant argues that based on
the history of her work experience with the Agency, Agency actions that
would otherwise be benign, take on an appearance of impropriety in this
specific situation. In essence, Complainant claims that the AJ's decision
was not detailed enough to reflect the voluminous amount of evidence or
the 4 days of testimony which were heard by the AJ.
In response to Complainant's appeal brief, the Agency submitted a
brief in which it argues that the AJ decision was supported by the
facts and the law. The Agency states that the AJ's decision indicates
that she did review and consider all of the evidence, even noting that
the AJ wrote that "all evidence was reviewed and considered whether
or not specifically mentioned." It argues that there is no evidence
that the AJ did not consider each claim individually, even though her
decision groups the claims by category. It also notes that the way an AJ
organizes the claims in order "to facilitate her decision making process"
is not an area subject to judicial review. Finally the Agency argues that
Complainant has not pointed to any error regarding any specific claim nor
did she refute the AJ's decision by showing that there was not substantial
evidence in the record to support the AJ's ultimate conclusions.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
We find that a review of the record evidence and testimony supports the
conclusions of the AJ. The AJ was well-acquainted with the facts and
background of Complainant's cases against the Agency, and held a 4-day,
12-witness hearing at which she heard testimony relating to Complainant's
claim of harassment, including testimony from Complainant herself. The AJ
made credibility determinations and factual findings that, while not
detailed with the specificity desired by Complainant, nonetheless provided
a legally sound basis for her decision. We find that Complainant has not
pointed to any error regarding any specific claim nor did she refute the
AJ's decision by showing that there was not substantial evidence in the
record to support the AJ's ultimate conclusions. We find that the AJ's
decision was supported by substantial evidence, and her judgment regarding
the credibility and demeanor of the witnesses should not be disturbed
on appeal. Therefore, we conclude that the AJ's determination that
Complainant was not discriminated against and harassed was correct.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we hereby AFFIRM the
Agency's final action, because the AJ's issuance of a decision finding no
discrimination was correct, and a preponderance of the record evidence
does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____6/17/10_____________
Date
2
0120081004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120081004