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.