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