Suwachee Reynolds, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 2, 1999
01971446 (E.E.O.C. Sep. 2, 1999)

01971446

09-02-1999

Suwachee Reynolds, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Suwachee Reynolds, )

Appellant, )

) Appeal No. 01971446

v. ) Agency Nos. DAY94AF176E

) DAY94AF765E

F. Whitten Peters, ) Hearing No. 150-95-8435X

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision

(FAD) concerning her equal employment opportunity (EEO) complaint of

unlawful employment discrimination 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.

The issues on appeal are:

whether appellant was discriminated against on the bases of national

origin (Thai), sex (female), and age (43), when on or around August 23,

1993, her duty hours on her weekly work schedule were reduced;

whether appellant was discriminated against on the basis of sex (female),

when she was sexually harassed on September 17, 1993, by the night manager

(MANAGER) of the Noncommissioned Officers' Open Mess (NCO) when he placed

his arm around her shoulders;

whether appellant was discriminated against on the basis of reprisal

(prior EEO activity), when on April 5, 1994, she was issued a letter of

counseling (LETTER); and

whether appellant was discriminated against on the basis of reprisal

(prior EEO activity) when on April 15, 1994, she was not permitted to

work overtime, beyond the end of her scheduled shift.

The record reveals that appellant, a regular, part-time NA-05 Bartender at

the agency's NCO at MacDill Air Force Base, Tampa, Florida, filed formal

EEO complaints with the agency on November 4, 1993, and July 14, 1994.

At the conclusion of the investigations, appellant was provided a copy

of the investigative reports and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ consolidated the complaints for

a single hearing, and thereafter issued a Recommended Decision (RD)

finding no discrimination.

The AJ concluded that concerning issue (1), appellant failed to establish

a prima facie case of discrimination under any of her alleged bases.

In reaching this conclusion, the AJ found, based on her �demeanor,

tone, inconsistent and contradictory testimony,� that appellant did

not present credible evidence that her hours were reduced and her

income decreased after confronted with payroll records. The AJ noted

that appellant conceded that once she found out her hours were going

to be reduced, she sought the Union's intervention, and as a result,

a proposed schedule change and reduction in hours never took place.

Noting that the above constituted no more than a proposed action, the

AJ concluded that appellant suffered no harm and was thus not aggrieved.

The AJ then concluded that concerning issue (2), appellant failed

to establish the existence of quid pro quo or hostile environment

sexual harassment. In reaching this conclusion, the AJ found that

after improperly closing out appellant's cash drawer one hour early,

the MANAGER approached her, and in the course of apologizing to her,

placed his arm around her shoulder. The MANAGER again placed his arms

around her shoulders, and stated that they were still friends and that

he liked her as a person. Based on appellant's testimony that she

found these remarks hypocritical, as opposed to sexual in nature, the

AJ found that the MANAGER's behavior was insufficient to be construed

as sexual harassment.

The AJ further concluded that concerning issue (3), appellant established

a prima facie case of retaliation, noting that an agency management

official heard rumors about appellant's EEO activity, and the timing

of the adverse action was sufficiently close in time to her first EEO

complaint so as to infer retaliatory animus. The AJ noted that the

agency articulated legitimate, nondiscriminatory reasons for its actions,

namely, that appellant was issued a LETTER because she discussed agency

business with customers and the agency did not believe such conduct was

appropriate. The AJ found credible the testimony of the agency's Duty

Officer and General Manager that appellant became irate when informed that

she could not work overtime while sharing a register with a co-worker,

decided she did not want to work, clocked out, and complained to customers

about her treatment. Based on this testimony, the AJ concluded that

the LETTER was not related to appellant's EEO activity.

The AJ finally concluded, without specifically finding whether appellant

established a prima facie case of retaliation concerning issue (4),

that the agency articulated legitimate, nondiscriminatory reasons

for not permitting her to work overtime beyond the end of her shift,

namely, that due to Sports Day activities, the agency adjusted scheduled

shift times, and at the end of appellant's scheduled shift, she had a

replacement scheduled to work. Noting that the agency's policy was not

to provide overtime unless no other choice existed, the AJ concluded that

the decision to deny appellant the opportunity to work beyond the end of

her shift was not related to her EEO activity. The agency's FAD adopted

the AJ's findings of fact and conclusions of law. Appellant submitted

no contentions on appeal. The agency stands on the record and requests

that we affirm its FAD.

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. We agree with the AJ that the

reduction in hours amounted to no more than a proposed action, and as

appellant did not allege that the reduction was part of a pattern of

harassment, the allegation was properly dismissed pursuant to 29 C.F.R. �

1614.107(a) for failure to state a claim. We also agree with the AJ

that appellant's testimony failed to establish that submission to the

MANAGER's act of placing his arms around her shoulders was made either

explicitly or implicitly a term or condition of appellant's employment

or was used as a basis for employment decisions affecting appellant;

or the conduct unreasonably interfered with her work performance or

engendered an intimidating, hostile or offensive working environment. 29

C.F.R. Section 1604.11(a); Quintero v. United States Postal Service,

EEOC Appeal No. 01960836 (April 21, 1998). The Commission further notes

that it generally will not disturb the credibility determination of an

AJ where, as here, such determinations are based on the credibility of

the witnesses. Esquer v. United States Postal Service, EEOC Request

No 05960096 (September 6, 1996); Willis v. Department of the Treasury,

EEOC Request No. 05900589 (July 26, 1990). We discern no basis to

disturb the AJ's findings of no discrimination which were based on a

detailed assessment of the record and the credibility of the witnesses.

Therefore, after a careful review of the record, including arguments and

evidence not discussed in this decision, the Commission AFFIRMS the FAD.

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 (S0993)

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 the 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 the 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 the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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:

September 2, 1999

_______________ ___________________________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat