01A24910_r
01-06-2003
Cathy R. Dunn-Miller, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Cathy R. Dunn-Miller v. Department of the Army
01A24910
January 6, 2003
.
Cathy R. Dunn-Miller,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A24910
Agency No. BHEFFO0004A0150
Hearing No. 310-A1-5090X
DECISION
Complainant timely appealed to this Commission 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 agency's final order adopted the findings of an EEOC Administrative
Judge (AJ), who found no discrimination, after conducting a hearing.
Complainant, a former Lead Cook at the agency's Longhorn Saloon in Fort
Hood, Texas alleged discrimination on the basis of reprisal for prior
EEO activity when her supervisor created a hostile work environment for
her that eventually led to her constructive discharge on March 15, 2000.
Complainant transferred from The Sports Dome, another restaurant on the
facility, in order to work with the Longhorn Saloon supervisor. When she
arrived at the Longhorn, however, complainant contends that her supervisor
harassed her by, among other things, criticizing the amount of salt she
put in the barbequed beef brisket and greens, undermining her authority
by assigning other duties to employees complainant had instructed to
cut pies, and leaving complainant written instructions of what foods
to prepare and how to prepare them on particular days. The supervisor
also suspended complainant for one day as a result of an altercation she
had with an acting manager concerning the lack of french fries prepared
for the buffet line, and sent her home early one day when she failed to
timely fry the correct amount of catfish for a catering function, despite
complainant's repeated assurances that she would have the task completed.
Complainant resigned from the agency shortly after the catfish incident.
The AJ found that the incidents complainant described were not
sufficiently severe or pervasive to justify a finding of harassment.
Further, the AJ found that the supervisor's actions were not based on a
discriminatory motive, but involved a disagreement over complainant's
duties, and the amount of autonomy she would have as lead cook in the
Longhorn Saloon. According to the AJ, complainant's supervisor attempted
to work with complainant, and even gave her an �excellent� performance
appraisal, despite their altercations.
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.
After a careful review of the record, 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 and
referenced the appropriate regulations, policies, and laws. We discern
no basis to disturb the AJ's decision.
CONCLUSION
Accordingly, the agency's final order 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
January 6, 2003
__________________
Date