Tracy L. Epps, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity CommissionMar 7, 2000
01980938 (E.E.O.C. Mar. 7, 2000)

01980938

03-07-2000

Tracy L. Epps, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.


Tracy L. Epps v. Department of Defense

01980938

March 7, 2000

Tracy L. Epps, )

Complainant, )

) Appeal No. 01980938

v. ) Agency No. 97.024

)

William S. Cohen, )

Secretary, )

Department of Defense, )

(Army & Air Force Exchange Service), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful retaliation for prior EEO activity

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> Complainant alleges she was retaliated

against when she was placed on administrative leave, suspended and

ultimately separated from employment. The appeal is accepted in

accordance with EEOC Order No. 960.001. For the following reasons,

the Commission affirms the FAD's finding of no discrimination.

The record reveals that during the relevant time, complainant was employed

as an Assistant Manager at a Burger King on the agency's Moody Air Force

Base in Valdosta, Georgia. Complainant alleged that the General Manager

(GM) retaliated against her because she would not agree to let him

resolve a sexual harassment claim she filed against a Senior Assistant

Manager in March 1996.<2> Believing the agency discriminated against

her, complainant sought EEO counseling and subsequently filed a formal

complaint on December 29, 1996. At the conclusion of the investigation,

complainant requested that the agency issue a final decision from which

she now appeals.

The FAD found that even if complainant established a prima facie case

of retaliation, she failed to prove, by a preponderance of the evidence,

that the agency's legitimate, nondiscriminatory explanations for taking

disciplinary action were a pretext for retaliation. Specifically,

GM stated that he placed complainant on administrative leave on

November 8, 1996, because of her behavior when she was instructed to

report to his office and failed to do so. GM, who was attempting to

confer with complainant about the fact that she was being placed on a

thirty day suspension, stated that complainant was hostile towards him,

used profanity and created a disturbance in the workplace. GM further

explained that the suspension was for the following reasons: in August

1996, she allegedly left the Burger King's safe open and $420.00 was

stolen; three days later, she again left the safe open; she was absent

without leave for three days in October 1996; and then took one day of

leave in November 1996, after her supervisor denied it. GM stated that

he separated complainant for insubordination, based on her behavior on

November 8, 1996, when he attempted to meet with her.

Complainant asserts that she was not hostile and did not create a

disturbance on November 8, 1996. However, we note that the reason

GM, accompanied by a woman from Human Resources, came to the Burger

King facility on that day was because complainant refused to report

to his office as she was requested to do. The record indicates that

on November 8, 1996, complainant refused to follow GM, her supervisor,

and the Human Resource representative into an office in the back of the

Burger King until she was directly ordered to do so. While there is some

dispute as to whether she caused a disturbance in the workplace, there

is no dispute that she used profane language and threw her keys at GM.

Complainant further asserts that there is no evidence proving that

she left the safe open the day that the money was stolen but presents

no credible evidence that she did not. She did take leave that was

not approved and directly disobeyed her supervisor when he denied her

leave request. The record also indicates that complainant received a

written reprimand in September 1996, for failing to maintain her area

of responsibility and that she was often late for her shift.

After a careful review of the record, based on the standards set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and

Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to retaliation cases), the Commission finds

that complainant failed to establish a prima facie case of retaliation.

In reaching this conclusion we note that the GM was aware of complainant's

sexual harassment complaint. However, there is no evidence to support

complainant's contention that the GM was angry because she refused to

let him resolve it. Complainant provides no credible evidence that her

conduct was acceptable or that similarly situated employees who engaged

in such conduct were treated more favorably than she was. By engaging

in such behavior, the Commission finds that complainant was not meeting

the legitimate expectations of her job, and we thus decline to infer

a retaliatory motive on the part of the agency in issuing discipline.

Accordingly, we affirm the FAD's finding of no retaliation.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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:

3/7/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

__________________________

Equal Employment Assistant

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 We note that management arranged the shift schedule so that complainant

did not to have to work on the same shift with the accused Senior

Assistant Manager and reorganized the chain of command so that complainant

no longer reported to him.