01a23873
06-30-2003
Belle Matthews, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Belle Matthews v. Department of the Air Force
01A23873
06-30-03
.
Belle Matthews,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23873
Agency No. AR000020915
Hearing No. 350-A0-8172X
DECISION
Belle Matthews (hereinafter referred to as complainant) filed a timely
appeal from the June 24, 2002, final decision of the Department of the
Air Force (hereinafter referred to as the agency) concerning a complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �
621 et seq. The appeal is timely filed (see 29 C.F.R. � 1614.402(a))
and is accepted in accordance with 29 C.F.R. � 1614.405.
The issues raised in this appeal are whether (a) the agency discriminated
against complainant based on age (DOB May 2, 1937) and sex when she was
subjected to a hostile work environment by her supervisor from November
1997 through December 1998; and (b) whether the remedy provided by the
Administrative Judge (AJ) constituted full and complete relief.
Complainant filed a formal complaint on May 5, 1999. Following an
investigation, she requested a hearing before an AJ. The AJ held a
hearing and, in a decision dated August 9, 2001, found that complainant
was harassed based on age but not sex. (AJ #1) He then held a second
hearing on remedy and issued a decision on April 24, 2002, reinstating
complainant to her position and providing other relief but not affording
her back pay for certain non-selections she identified. The agency
agreed to implement the AJ's decisions, and complainant filed this appeal.
At the time of the events herein, complainant worked as a Supervisory
Environmental Engineer, Environmental Compliance, Luke AFB (Arizona).
Beginning in November 1997, her supervisor, the Environmental Flight
Chief, 56th Civil Engineering Squadron (S1), began to take certain
actions against complainant, e.g., he solicited written statements from
other employees about complainant's management style, he issued her a
notice of proposed reprimand, he removed her supervisory duties and
reassigned a younger employee to the position, he reassigned her to a
non-supervisory position that he knew would be eliminated by the end
of the year, and he gave her an "excellent" rather than a "superior"
performance rating. The AJ found that S1's action constituted ongoing
harassment and created a hostile work environment on the basis of age.
He further found that complainant did not demonstrate that the actions
alleged were based on sex.<1>
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 an independent review of the record
and hearing testimony in its entirety, including consideration of all
statements submitted on appeal, it is the decision of the Commission that
the AJ accurately stated the facts and correctly applied the pertinent
principles of law and that his decision on the merits is supported by
substantial evidence in the record. The Commission agrees with the AJ
and finds that the agency discriminated against complainant based on age.
The Commission's regulations provide that, in an individual case of
discrimination, the agency must provide full relief to the complainant.
29 C.F.R. � 1614.501; see also Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975). In the matter before us, the AJ ordered the agency to reinstate
complainant to her former position or a substantially equivalent position,
cancel the reassignment and expunge adverse materials from her records,
cease and desist from harassing complainant, provide mandatory training
to managers, and post a nondiscrimination notice. The AJ noted that
back pay was not requested, since complainant maintained the same grade
level on reassignment, nor were compensatory damages available in cases
of age discrimination. He also found that she did not provide sufficient
evidence to demonstrate that her non-selection for other positions was
the result of the agency's discrimination.
In her appeal, complainant repeated her argument that she was entitled to
relief for non-selection to positions she had applied for at the base,
within the agency, and at other agencies, contending that the agency's
discriminatory harassment tainted her application. For example, she
speculated that negative information may have remained in her file and
that others likely considered her a "non-team player." Her argument rests
on the proposition that, because she was qualified but not selected
for the positions she sought, the agency's discriminatory conduct
must be responsible. This reasoning, however, without more, does not
demonstrate a causal connection between the agency's discriminatory
actions and her non-selections. We agree with the AJ that complainant
failed to present sufficient evidence or documentation to demonstrate
causation between the discrimination and her non-selections.
After an independent and thorough review of the record, hearing
transcripts, and documents submitted on appeal in this matter, for the
reasons set forth below, we find that the decision of the AJ is proper
and that the remedies provide complete and full relief to complainant.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED. The agency
is directed to comply with the Order, below.
ORDER (D0900)
The agency is ordered to take the following remedial actions to the
extent that it already has not done so:
A. Within 30 days of the date this decision becomes final, the agency
shall reinstate complainant to the position she held prior to her
reassignment, with all attendant rights and benefits as provided by law.
If that position no longer exists, the agency shall reinstate her to a
substantially equivalent position.
B. The agency shall remove and expunge all adverse references to any
of the discriminatory actions taken by S1 from all agency files.
C. Within ninety (90) days of the date this decision becomes final,
the agency shall provide sixteen (16) hours of training for S1, at
his current location, addressing his responsibilities with respect
to eliminating discrimination in the federal workplace and under the
equal employment opportunity laws. The training shall place special
emphasis on prevention and elimination of discriminatory harassment and
discrimination based on age. The Commission does not consider training
to be a disciplinary action.
D. The agency shall consider appropriate disciplinary action against
S1 and report its decision to the Commission. If the agency decides to
take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.<2>
E. The agency is directed to ensure that S1 have no supervisory or
managerial authority over complainant for the remainder of her employment
with the agency.
F. 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 and
evidence that the corrective action has been implemented. A copy of
all submissions to the Commission shall be sent to the complainant.
POSTING ORDER (G0900)
The agency is ordered to post at Luke AFB (Arizona) 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
___06-30-03_______________
Date
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 the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privilege of
employment.
The Department of the Air Force, Luke AFB (Arizona), supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under the law. The agency found
discrimination based on age, and it has remedied the employee affected by
the Commission's finding of age discrimination by reinstating the employee
to the former position, removing and expunging adverse material from the
employee's files, providing mandatory EEO training to supervisors and
managers, ordering the agency to cease and desist from harassment based on
age, and posting this Notice. The Department of the Air Force, Luke AFB
(Arizona), will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all federal equal employment laws and will not subject employees to
harassment and discrimination based on age.
The Department of the Air Force, Luke AFB (Arizona), 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 participated in proceedings pursuant to, Federal equal employment
opportunity law.
Date Posted:
Posting Expires:
1The AJ also found that S1's testimony was incredible and not supported
by the testimony of others or the record.
2The agency is reminded that the AJ found S1's testimony was not credible.