01997049
01-05-2001
Gina D. Pleas, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army and Air Force Exchange Service), Agency.
Gina D. Pleas v. AAFES
01997049
January 5, 2001
.
Gina D. Pleas,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Army and Air Force Exchange Service),
Agency.
Appeal No. 01997049
Agency Nos. 97-051; 97-064; 98-033
Hearing Nos. 350-98-8268X; 350-98-8269X; 360-98-8755X
DECISION
Complainant timely initiated an appeal from the 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 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
In agency complaint nos. 97-051 and 97-064, complainant, who during the
relevant time was employed as a Retail Branch Manager at the agency's
Fort Bliss facility in El Paso, Texas, alleges she was discriminated
against based on race (African-American) when:
(1) On or about January 24, 1997, her General Manager (GM) ignored her
requests for additional personnel; on or about January 22, 1997, GM
refused to purchase a copy machine for complainant's store; and from
September 9, 1996 through February 25, 1997, GM limited complainant's
access to the AAFES computer link;
(2) GM subjected complainant to verbal and mental abuse when, on November
14, 1996, GM told complainant she had a negative perception about her;
on February 6, 1997, GM allegedly called complainant a liar; and on
February 24, 1997, GM told complainant she had no common sense;
(3) On January 6, 1997, complainant was suspended without pay for five
days;
(4) On February 25, 1997, complainant was suspended without pay for
thirty days;
(5) Effective February 25, 1997, complainant was separated from agency
employment; and
(6) On or about February 28, 1997, complainant's personal bank account
was debited in the amount of her direct deposit pay check.
In agency complaint no. 98-033, complainant alleges she was retaliated
against for prior EEO activity when:
(1) In or about August 1997, she was denied unemployment compensation
as a result of the agency stating she had been fired;
(2) In or about August 1997, she learned that her previously-approved
leave without pay had been deducted from her final paycheck;
(3) On or about August 1997, she learned her insurance was canceled; and
(4) On or about August 1997, she learned that the agency had stated in
some cases that she resigned and in other cases that she was terminated.
At the conclusion of the investigation of the first two complaints,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). After the pre-hearing
conference, the AJ remanded the complaints to the agency to hold in
abeyance pending completion of the investigation of the third complaint.
Thereafter, the agency forwarded all three investigative files to the AJ,
and a hearing was held on the three consolidated complaints. Following
the hearing, the AJ issued a decision finding no discrimination or
retaliation, and the AJ's conclusions were adopted by FAD issued August
24, 1999.
On appeal, complainant contends: (1) the AJ incorrectly found that she
resigned rather than was terminated, and in particular failed to credit
complainant's written and verbal statements that she was not resigning;
(2) because complainant was a college graduate, she was perceived by
the GM and other Caucasian managers as posing a threat because she was
competing for the same level positions as they were; (3) management did
not treat complainant fairly with respect to the personal problems she
was experiencing; (4) it is implausible that complainant, rather than
the agency, advised the state unemployment commission that complainant
was fired rather than resigned; and (5) her absences were each justified
by personal problems, illness, or other situations, and she informed
management in advance of the reasons for her absences.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We find that complainant
failed to present evidence from which an inference could be drawn that any
of the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus based on complainant's
race. Inasmuch as the AJ's findings of no discriminatory or retaliatory
intent are supported by substantial evidence in the record, we discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
FAD for the reasons set forth in the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 5, 2001
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.