01A42558_r
06-14-2004
Lenetta Graves, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army (Army and Air Force Exchange Service), Agency.
Lenetta Graves v. Department of the Army
01A42558
June 14, 2004
.
Lenetta Graves,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army
(Army and Air Force Exchange Service),
Agency.
Appeal No. 01A42558
Agency No. 02-001
Hearing No. 240-A2-5120X
DECISION
Complainant timely initiated an appeal from the agency's final order
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Sales Associate at the agency's
Fort Campbell, Kentucky facility, filed a formal EEO complaint on
September 30, 2001, alleging that the agency discriminated against her on
the basis of race (African-American) when it subjected her to a hostile
work environment which resulted in her constructive discharge effective
July 5, 2001. Specifically, complainant contended that the Facility
Manager's insistence that she call for assistance while working the
cash register if there were more than three customers in line created
a hostile work environment. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). After a hearing,
the AJ issued a decision, finding no discrimination. The agency's final
order implemented the AJ's decision.
During the hearing, the Facility Manager testified that complainant
was slow processing transactions on the cash register and "refused
to call for help when there were more than three customers in line."
She stated that it was the agency's policy that all sales associates must
call for assistance when there were more than three customers in line.
"I do not recall anyone not calling for assistance as often as Ms. Graves,
but if an associate had a line, I would have told them the same thing,
to call for help," she testified.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Constructive discharge occurs when an employer deliberately renders
an employee's working conditions so intolerable that the individual is
forced to resign from her position. Constructive discharge only occurs
when the agency's actions were taken with the intention of forcing the
employee to resign. The Commission has established three elements which
complainant must prove to substantiate a claim of constructive discharge:
1) a reasonable person in complainant's position would have found the
working conditions intolerable; 2) the conduct causing the intolerable
working conditions is an EEO violation; and 3) complainant's resignation
was caused by the intolerable working conditions. See Taylor v. Army &
Air Force Exchange Serv., EEOC Request No. 05900630 (July 20, 1990);
Perricone v. United States Postal Serv., EEOC Request No. 05900135
(June 11, 1990). Upon review of this matter, we find that complainant
has not shown that the working conditions were so intolerable as to
render her resignation a constructive discharge. Moreover, we find that
complainant has failed to prove that the agency's actions were motivated
by race-based animus.
Therefore, we affirm the agency's final order finding no discrimination.
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
_June 14, 2004_________________
Date