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.