0120061605
03-18-2008
Eileen M. Morales, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Eileen M. Morales,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200616051
Agency Nos. 8Z0J04061 and 8Z0J05001
Hearing No. 360-2005-00280X
DECISION
Complainant timely filed this appeal from the agency's December 21,
2005 final order concerning her equal employment opportunity (EEO)
complaints. For the following reasons, the Commission AFFIRMS the agency's
final order.
Complainant was hired for a part-time position as a Library
Technician, GS-1411-04 at Lackland Air Force Base in Texas, on April
5, 2004. Complainant filed her first complaint on September 24,
2004. Complainant alleged employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. on the bases of national origin (Japanese/Hispanic) and
in retaliation for prior EEO activity when:
1. On July 23, 2004, the Assistant Library Director made racial slurs
about the French and Germans;
2. On August 9, 2004, the Assistant Library Director referred to Japanese
as "Japs;"
3. On August 14, 2004, complainant learned from a co-worker that her
team leader requested that two co-workers "write her up;"
4. On August 16, 2004, when complainant informed the Library Director that
she spoke with the Civilian Personnel Office, the Library Director told
her the Assistant Library Director's statement had nothing to do with her,
as she was not French or German and asked her if she was going to resign;
5. On August 16, 2004, complainant overheard the Library Director tell
the Assistant Library Director she could not believe the complainant
took the racial slurs complaint outside the section;
6. On August 16, 2004, complainant overheard the Assistant Library
Director tell the Library Director that complainant was not a good
worker;
7. On August 17, 2004, the Team Leader told complainant to find something
to do, while others standing with her were not told the same;
8. On August 17, 2004, complainant was not allowed to meet with her EEO
representative but had to reschedule an appointment because she was not
advised of a staff meeting that day;
9. On August 20, 23, and 30, 2004, the Assistant Library Director cut
in on every customer action the complainant was working;
10. On August 20, and 21, 2004, the Library Director told complainant to
"read her shelves;"
11. On August 23, 2004, the Assistant Library Director took a facsimile
complainant was doing for a customer and yelled at her in front of
customers;
12. On August 23, 2004, as complainant was on the telephone with her
representative, the Assistant Library Director yelled at her to give
him the phone and told her she was not to make personal phone calls;
13. On August 27, 2004, the Assistant Library Director passed around
a policy pertaining to sending and receiving facsimiles and singled
complainant out by writing on the letter, "Has [complainant] seen it?;"
14. On August 29, 30, and 31, 2004, the Team Leader would not speak to
complainant except to tell her to find something to do;
15. On August 31, 2004, the Assistant Library Director singled complainant
out by coming to the front and saying, "Let's see who is working;
[Person D] you're working, [Person E], you're working," but looked at
complainant and said nothing. Then he walked to the back and asked a
co-worker or anyone to find something for complainant to do; and,
16. On August 31, 2004, the Assistant Library Director changed the work
schedule and split complainant's days off.
Complainant filed a second EEO complaint on November 15, 2004, which was
amended on November 30, 2004. Complainant alleged that she was subjected
to a hostile work environment in retaliation for prior EEO activity when:
17. In late April or early May, 2004, complainant was not asked to sign
a card or contribute toward flowers for a co-worker's husband who had
surgery, and was hospitalized;
18. The Team Leader intentionally scheduled a potluck lunch on
complainant's day off, September 23, 2004, and did not ask her to sign
the card for a co-worker who was retiring;
19. On October 2, 2004, complainant told the Team Leader she was going
to read her shelves and Person A did not acknowledge her;
20. On October 3, 2004, complainant was waiting in line behind the Team
Leader to sign in the schedule book and Person A put the book away before
the complainant could sign in;
21. On October 3, 2004, when complainant signed in the Schedule Book, the
Team Leader told her, "If you have something to say, say it to me now;"
22. On October 3, 2004, the Team Leader pointed at complainant and asked
her in front of two co-workers if she had gone to the book drop;
23. On October 4, 2004, the Team Leader told complainant's supervisor
that complainant refused to go to the book drop, and the supervisor
ordered complainant to go to the book drop;
24. On October 7, 2004, complainant reported to work and told the Team
Leader she was going to read her shelves and the Team Leader did not
respond or acknowledge her, but acknowledged two co-workers upon their
reporting to work by telling them, "Good Morning;"
25. In mid-October, a co-worker told complainant Person B said the Team
Leader, the Assistant Library Director, and the Library Director had to
go to EEO again because complainant had filed another complaint;
26. In late October 2004, complainant was not asked to contribute toward
flowers or to sign the card for an ill co-worker;
27. On November 5, 2004, complainant received an electronic mail message
from the Team Leader stating complainant had not accomplished closing
duties on November 1, 2004, and she had;
28. The Team Leader scheduled a co-worker's farewell on complainant's
day off, November 10, 2004;
29. Complainant requested assignment to Person C's work schedule, but
became aware November 12, 2004, the schedule was assigned to another
employee;
30. The Assistant Library Director "writes her up for everything," yet
she has not been given a six-month performance feedback as of November
12, 2004;
31. On November 22, 2004, during severe weather conditions, the Assistant
Library Director put her on hold three times as she was standing in the
rain at a pay phone. The Library Director told her that other employees
had made it in safely, to go home and call back in two hours, and come
in;
32. On November 30, 2004, the Team Leader assigned complainant the
additional duty of tracking overdue books, even though her supervisor
had given complainant bad performance feedback on November 23, 2004;
33. Complainant became aware in late November that the Christmas party
for the library had been scheduled for December 16, 2004, complainant's
day off; and,
34. The Team Leader continually demonstrated a hateful attitude towards
her, will not speak to her, and when she does speak to her, it is in a
very harsh, abrupt manner.
An investigation was conducted for the above complaints and thereafter,
complainant requested a hearing on her complaints before an EEOC AJ.
A hearing on the merits was conducted on October 19, 2005, and the
AJ issued a decision finding no discrimination in violation of Title
VII on November 30, 2005. The AJ found that none of the 34 claims was
with merit. On December 21, 2005, the agency issued a final order fully
implementing the AJ's decision.
ANALYSIS
At the outset, the Commission notes that one witness testified by
telephone at the hearing held by the AJ. The Commission has held that
testimony may not be taken by telephone in the absence of exigent
circumstances, unless at the joint request of the parties and provided
that specified conditions have been met. See Louthen v. USPS, EEOC Appeal
No. 01A44521 (May 17, 2006).2 However, because the facts of this case
pre-date Louthen, the Commission will assess the propriety of taking
the testimony of witnesses by telephone, considering the totality of the
circumstances. Here, the witness had to testify by telephone because she
was located in Italy because of a job assignment. We determine that there
were no issues of witness credibility that might have been impacted by
the taking of this testimony by telephone, and neither party objected to
the manner in which those witnesses testified. Under these circumstances,
the Commission finds that even assuming arguendo that the AJ abused her
discretion by allowing telephone testimony, the taking of testimony by
telephone constituted harmless error.
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. NLRB, 340 U.S. 474, 477 (1951)
(citation omitted). An AJ's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
Upon review, we find substantial evidence supports the AJ's finding
that there exists "no evidence to support complainant's contention that
the various acts she complains of were committed because of her national
origin or in retaliation for her prior EEO activity." We note that the AJ
found that the comment regarding "Japs" was misheard by complainant and
was not at all what was said. While it is clear there was a personality
conflict between complainant and her co-workers and superiors, as the
AJ rightly observes, Title VII does not protect employees from hostile
conduct that is not based on their protected status.
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
March 18, 2008
_____________________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 "In Louthen, the Commission has promulgated its policy regarding
the taking of telephonic testimony in the future by setting forth
explicit standards and obligations on its Administrative Judges and the
parties. Louthen requires either a finding of exigent circumstances
or a joint and voluntary request by the parties with their informed
consent. When assessing prior instances of telephonic testimony, the
Commission will determine whether an abuse of discretion has occurred
by considering the totality of the circumstances. In particular, the
Commission will consider factors such as whether the there were exigent
circumstances, whether a party objected to the taking of telephonic
testimony, whether the credibility of any witnesses testifying
telephonically is at issue, and the importance of the testimony given
telephonically. Further, where telephonic testimony was improperly taken,
the Commission will scrutinize the evidence of record to determine
whether the error was harmless, as is found in this case." Sotomayor
v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
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***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120061605