Valerie G. Morman, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01973349 (E.E.O.C. May. 18, 2000)

01973349

05-18-2000

Valerie G. Morman, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Valerie G. Morman v. Department of Defense

01973349

May 18, 2000

Valerie G. Morman,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Commissary Agency),

Agency.

Appeal No. 01973349

Agency No. SAC-95-CA-0083-E

Hearing No. 380-95-8147X

DECISION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission or EEOC) from a final agency decision (FAD)

concerning her claims that she was discriminated against on the bases of

race (Alaskan Native) and reprisal (prior EEO activity) when: (1) her

shift was changed; (2) she was issued a Letter of Instructions because

of excessive absenteeism, and for not following the proper procedures

for requesting leave; and (3) subsequent to her resignation she was

not allowed to withdraw the resignation, in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

The Commission hereby accepts the appeal pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

At the time of the alleged discrimination, complainant was employed as a

Sales Store Checker at the agency's Fort Richardson, Alaska, facility.

Believing that she was the victim of discrimination, complainant

sought EEO counseling and, thereafter, filed a formal EEO complaint.

Thereafter, the agency dismissed the complaint on procedural grounds and

that decision was appealed to the Commission. In Morman v. Department

of Defense, EEOC Appeal No. 01941643 (January 9, 1995), the Commission

reversed the agency's decision and remanded the case for investigation.

With respect to the shift change, the Commission concluded that the

agency's dismissal of the claim as moot because complainant had resigned

was improper. Specifically, the Commission held that complainant was

alleging in claim 1 that the agency discriminated against her because it

failed to accommodate her medical condition. With respect to claim 2,

the Commission concluded that complainant properly and timely raised a

claim of reprisal discrimination. The Commission further found that

claim 3 was so "inextricably intertwined" with claim 1 that, but for

the alleged discrimination in claim 1, complainant allegedly would not

have resigned and, subsequently sought to withdraw the resignation and

applied for leave without pay.<2>

Thereafter, the agency investigated the complaint and complied with

all of our procedural and regulatory prerequisites. Subsequently,

complainant requested a hearing before an EEOC Administrative Judge (AJ),

which was held on Friday, July 26; Tuesday, July 30; and Thursday, August

1, 1996. At the conclusion of the hearing, the AJ issued a Recommended

Decision (RD) finding discrimination. In her RD, the AJ concluded that

complainant established a prima facie case of race discrimination in

all three claims and that complainant established a prima facie case of

reprisal discrimination with respect to claim numbers two and three.

The AJ further found that the agency's articulated nondiscriminatory

reasons for its actions were pretextual.

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge 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 that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

In the instant matter, the AJ reasoned that, contrary to the agency's

assertion, complainant had provided sufficient medical documentation

to support her request to work the earlier and less demanding shift.

Additionally, the AJ found that the agency's testimony concerning

why complainant was issued a Letter of Instructions (LOI) for abuse

of leave procedures was not credible. The AJ found support for this

conclusion based on the testimony of complainant's regular supervisor

(S1), who was away on two weeks leave at the time the LOI was issued.

S1 stated that complainant was a good employee who did not abuse agency

leave policy. The AJ also found contradictions in the testimony of the

acting supervisor who issued the LOI. The AJ further concluded that the

agency was aware that complainant was having serious health problems at

the time she "resigned" and that she should have been apprised of the

option to go on leave without pay. Complainant verbally resigned from

her position on June 28, 1993. Subsequently, complainant attempted to

withdraw her resignation on or about June 30, 1993, in order to request

leave without pay. However, complainant was informed by the agency

that her position was no longer available because a part-time employee

had converted to complainant's permanent slot when she resigned. The AJ

found that the agency's failure to explore options available in order to

avoid complainant's resignation from agency employment and its refusal to

accept her subsequent withdrawal of that resignation was discriminatory

and retaliatory.

In general, the AJ did not find credible agency testimony regarding its

knowledge, or lack thereof, of complainant's Alaskan Native heritage.

Concerning the agency's knowledge of complainant's prior EEO activity,

the record revealed that the agency was aware that complainant contacted

an EEO counselor after she was switched to the late shift. After the

AJ issued the RD, the agency issued a FAD, dated February 14, 1997,

that modified the AJ's RD and found that complainant was only subjected

to reprisal discrimination as the result of claim 2. The agency also

awarded complainant compensatory damages in the amount of $500.00.

It is from this agency decision that complainant now appeals.

With respect to three claims, and after careful review of the entire

record, including arguments and evidence not specifically addressed in

this decision, the Commission finds that the AJ's RD sets forth the

relevant facts, and properly analyzes the appropriate regulations,

policies and laws. The Commission discerns no basis to disturb the

AJ's finding.

Accordingly, with respect to all three claims, that part of the agency's

decision which is consistent with the AJ's recommended finding of

discrimination is AFFIRMED. That part of the FAD that is inconsistent

with the AJ's recommended finding of discrimination is REVERSED and

the matter is REMANDED for the agency to comply with the terms of the

ORDER below.

ORDER

The agency is ORDERED to take the following remedial actions:

1. To the extent it has not already done so, the agency shall take

corrective, curative and preventive action to ensure that race and

reprisal discrimination does not recur, including but not limited to

providing training to the responsible official(s) at the Fort Richardson,

Alaska, facility in the law against employment discrimination. Within

thirty (30) calendar days of the date the training is completed, the

agency shall submit to the Compliance Officer appropriate documentation

evidencing completion of such training.

2. The agency shall immediately reinstate complainant to her Cashier

position or to a comparable position for which she qualifies and which she

would accept, and, prior to the reinstatement, the agency shall inquire

from the complainant's physicians what the state of the complainant's

health is and whether she has any health related requirements with respect

to her job. The agency is further ordered to compensate complainant

for all wages lost as the result of its discriminatory refusal to accept

complainant's request to withdraw her resignation.

3. In light of the additional findings of discrimination herein,

the issues of compensatory damages and attorney's fees and costs are

REMANDED to the Hearings Unit of the appropriate EEOC field office.

Thereafter, the administrative judge shall issue a decision on these

issues in accordance with 29 C.F.R. � 1614.109, and the agency shall issue

a final action in accordance with 29 C.F.R. �1614.110 within forty (40)

days of receipt of the administrative judge's decision. The agency shall

submit copies of the decision of the Administrative Judge and the final

agency action to the Compliance Officer at the address set forth below.

4. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Fort Richardson, Alaska, facility

copies of the attached notice. Copies of the notice, after being

signed by the agency's duly authorized representative, shall be posted

by the agency within thirty (30) calendar days of the date this decision

becomes final, and shall remain posted for sixty (60) consecutive days,

in conspicuous places, including all places where notices to employees are

customarily posted. The agency shall take reasonable steps to ensure that

said notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

INTERIM RELIEF (F1199)

When the agency requests reconsideration and the case involves a

finding of discrimination regarding a removal, separation, or suspension

continuing beyond the date of the request for reconsideration, and when

the decision orders retroactive restoration, the agency shall comply with

the decision to the extent of the temporary or conditional restoration

of the complainant to duty status in the position specified by the

Commission, pending the outcome of the agency request for reconsideration.

See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.502(b)).

The agency shall notify the Commission and the complainant in writing at

the same time it requests reconsideration that the relief it provides

is temporary or conditional and, if applicable, that it will delay

the payment of any amounts owed but will pay interest from the date

of the original appellate decision until payment is made. Failure of

the agency to provide notification will result in the dismissal of the

agency's request. See 29 C.F.R. � 1614.502(b)(3).

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action AFTER

ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

May 18, 2000

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

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated

which found that a violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq., has occurred at this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of the person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions or privileges of employment.

The Department of Defense, Defense Commissary Agency, Fort Richardson,

Alaska (hereinafter "Fort Richardson Facility"), supports and will

comply with such Federal law and will not take action against individuals

because they have exercised their rights under law.

The Fort Richardson Facility, has been found to have discriminated on

the basis of: race when an individual's shift was changed; race and

reprisal when the individual was issued a letter of instruction for

excessive absenteeism and for not following proper procedures for

requesting leave; and, race and reprisal when the agency refused

to allow the complainant to withdraw her resignation. The Fort

Richardson Facility has been ordered to take corrective action in the

form of training for the responsible official(s), and reinstatement,

payment of lost wages and compensatory damages for the complainant.

The Fort Richardson Facility will ensure that officials responsible for

personnel decisions and terms and conditions of employment will abide

by the requirements of all Federal equal employment opportunity laws

and will not retaliate against employees who file EEO complaints.

The Fort Richardson Facility will not in any manner restrain, interfere,

coerce, or retaliate against any individual who exercises his or her

right to oppose practices made unlawful by, or who participates in

proceedings pursuant to, Federal equal employment opportunity law.

Date Posted: _____________________ _______________________

Posting Expires: _________________

164 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 16141On 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.

2We note that in the prior procedural decision the Commission found that

complainant was effectively alleging constructive discharge in claim 3.

We further note that the final agency decision held that constructive

discharge was relevant to this case. Nevertheless, upon further review,

we find that a constructive discharge analysis is unnecessary since the

AJ properly framed the issue as whether the agency's refusal to accept

the withdrawal of the resignation was discriminatory. See analysis and

findings infra.