01976553
08-06-1999
Kathleen A. Knowles, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Kathleen A. Knowles v. Department of the Air Force
01976553
August 6, 1999
Kathleen A. Knowles, )
Appellant, )
) Appeal No. 01976553
v. ) Agency No. AL900970629
) Hearing No. 360-96-87-37X
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of national origin
(African American) and color (Black), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges she was discriminated against when from March 13,
1995 through January 9, 1996, she was not reclassified and upgraded
from a Food Service Worker (FSW) to a Cook. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant filed a formal EEO complaint with the
agency on January 2, 1995, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ). Following a hearing, the
AJ issued a Recommended Decision (RD) finding no discrimination. The
AJ concluded that appellant failed to establish a prima facie case of
discrimination because she failed to demonstrate that similarly situated
employees not in her protected classes were treated differently under
similar circumstances.
Nevertheless, the AJ continued the analysis arguendo and concluded that
the agency articulated legitimate, nondiscriminatory reasons for its
actions, namely, that the appellant's position was correctly classified.
The AJ noted that the primary distinction between the duties of a FSW and
a Cook was that a Cook could modify a recipe while a FSW was restricted
to following the recipe. Further, the evidence showed that an audit
of the FSW position had been performed and it was determined that the
duties performed by appellant were that of a FSW and not a Cook.
The AJ also found that appellant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that there
was insufficient evidence to show that the Agency was attempting to
discriminate against appellant by classifying her position as FSW.
Rather, the AJ indicated that she was convinced that the agency's
evaluation of the work showed that appellant was doing the work of a FSW
and not that of a cook. Further, the AJ indicated that she was convinced
that the evaluation was not tainted by any discriminatory motive.
The agency's FAD adopted the AJ's RD. On appeal, appellant restates
arguments previously made at the hearing. The agency responds by
restating the position it took in its FAD, and requests that we affirm
its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree that appellant did
not establish a prima facie case of national origin and color
discrimination. We discern no basis to disturb the AJ's findings of
no discrimination which were based on a detailed assessment of the
record and the credibility of the witnesses. See White v. USPS, EEOC
Request No. 01973741 (May 13, 1999); Wrenn v. Gould, 808 F.2d 493, 499
(6th Cir. 1987); Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
August 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations