01a61930
07-26-2006
Joyce A. Wallace, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Joyce A. Wallace v. Department of the Air Force
01A61930
July 26, 2006
.
Joyce A. Wallace,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A61930
Agency No. 1C-401-0078-04
Hearing No. 120-2005-00495X
DECISION
Complainant filed an appeal with this Commission from the February 16,
2006 agency decision which implemented the January 5, 2006 decision of
the EEOC Administrative Judge (AJ) finding no discrimination.
Complainant alleged that the agency discriminated against her on the
basis of sex (female) when Equal Employment Opportunity (EEO) Managers
subjected her to a hostile work environment from September 10, 2001,
through September 10, 2003:
1. From January to September 2003, the EEO Manager claimed complainant's
work as his own by taking responsibility for the EEO Net Report for
which she was solely responsible.
2. From January to September 2003, the EEO Manager continually promised
complainant's position to Person A, the female secretary to the Wing
Commander.
3. In March 2003, the EEO Manager told the EEO Specialist of his
intention to get rid of complainant because he could not deal with her
aggressiveness and on August 8, 2003, the EEO Manager advised complainant
that he would not be extending her term appointment and she was terminated
on September 9, 2003.
4. On April 4, 2003, the EEO Manager called complainant at home and
informed her that she was placed on absence without leave (AWOL) and when
she reminded him that he had previously approved her leave, he stated that
he had forgotten. On April 30, 2003, the EEO Manager engaged in the same
conduct when he informed the Director of Staff that complainant was on
AWOL and she denied the AWOL charge and informed the WG Director of Staff.
5. On August 6, and August 7, 2003, the EEO Manager informed complainant
to submit leave slips for being 15 minutes late to work and for two
hours of leave, treating her less favorably than male Employee A and
male Employee B and the EEO Manager himself when they were absent and
not charged leave or placed on AWOL.
6. During the entire time period complainant worked under the EEO
Manager's supervision, he never issued her a performance appraisal or
counseled her regarding her performance but on September 8, 2003, the day
before her termination, the EEO Manager informed her that her 2002-2003
appraisal was ready and she refused to sign it. Complainant noted that
the EEO Manager and the reviewing official had signed her appraisal
on June 1, 2003, and their taking three months to issue the appraisal
constituted harassment.
Complainant also alleged that the EEO Manager constantly subjected her
to a cold, negative work environment and singled her out by treating her
differently from male staff, that the EEO Manager frequently walked by
her office, stopping and staring at her in a negative fashion but never
saying anything to her. She also alleged that she was subjected to
strict time and attendance treatment and repeated discussions concerning
her work and conduct.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an AJ. Following the
hearing, the AJ issued his decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disparate treatment or hostile work environment based on her sex.
The AJ noted that she was were not similarly situated to the two male
comparatives (Employees A and B), noting that the two males were career
permanent employees, had different starting times than complainant and
Employees A and B were meeting the expectations of the EEO Manager and
complainant was not. Regarding complainant's claim of a hostile work
environment, the AJ noted that complainant failed to show that the
agency's alleged actions had the purpose or effect of unreasonably
interfering with her work performance or creating an intimidating,
hostile or offensive work environment. The AJ further concluded that
even if complainant had established a prima facie case of a hostile work
environment, complainant failed to show that it was sufficiently severe
or pervasive to alter the conditions of her employment.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion, or in
reprisal is unlawful. To establish a prima facie case of harassment,
a complainant must show that: (1) complainant belongs to a statutorily
protected class; (2) complainant was subjected to harassment in the form
of unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment and (5) some basis exists to impute liability to the
employer, i.e., supervisory employees knew or should have known of the
conduct but failed to take corrective action.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
Pursuant to 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 regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held. Additionally, the Commission notes that an
AJ's credibility determination based on the demeanor of a witness or on
the tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so lacks
in credibility that a reasonable fact finder would not credit it. See
EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Further, an AJ's credibility determinations are entitled to deference
due to the AJ's first-hand knowledge through personal observation of the
demeanor and conduct of the witness at the hearing. Grant v. Department
of the Treasury, EEOC Appeal No. 01985972 (August 2, 2001).
Upon review, the Commission finds that the AJ's findings of fact are
supported by substantial evidence in the record and that the AJ's decision
properly summarized the relevant facts.
The record reveals that complainant was a two-year term employee and that
her appointment expired on September 9, 2003. The record also reveals
that complainant's supervisor, the EEO Manager, who began working in
the EEO Office in January 2003, found complainant deficient in attitude,
aptitude, and ability and that he took actions towards complainant as a
result of her conduct and her performance. The record reveals further
that the EEO Manager counseled complainant regarding her work standards
and expectations but that she failed to improve and her performance
remained inconsistent and marginal. The record also reveals that the
EEO Manager assigned to complainant the duty of preparing the EEO Net
Report but that because there was an unacceptable level of discrepancies
in the report and incomplete and erroneous data, by July 2003, he began
to complete the report himself.
The record reveals further that the EEO Manager allowed employees who
were late to make up time at the end of the day when the employees
were a few minutes late but that complainant abused the policy and was
frequently late. The record reveals that complainant failed to improve
her time and attendance. The record also reveals that the EEO Manager
testified that he required that complainant take leave for being late on
August 6, 2003, and because complainant was late every day from August 4,
through August 8, 2003, complainant was required to take leave. The EEO
Manager testified that he never charged complainant with AWOL but that
he did notify the Director of Staff that complainant was AWOL because
she was late and had not called in to notify him. The record reflects
that the EEO Manager treated complainant in the same manner as other
employees regarding her time and attendance until her tardiness became
excessive and she failed to follow proper procedures when she was late.
The record reflects that by the end of August 2003, the EEO Manager
decided not to extend complainant's term appointment because her
performance was marginal, her time and attendance performance was
unacceptable, and she had not developed a good work ethic.
After a careful review of the record, including arguments and evidence
not specifically addressed in this decision, the Commission finds that
the AJ's findings of fact are supported by substantial evidence in the
record. Even assuming that complainant established a prima facie case,
complainant has not shown that the agency's explanations for its actions
were mere pretext to hide unlawful discrimination. Further, complainant
did not establish by a preponderance of the evidence that the agency's
actions were motivated by discriminatory animus. We discern no basis
to disturb the AJ's decision.
The agency decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
July 26, 2006
__________________
Date