01a23108
07-31-2003
Lolitah Stephens, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Lolitah Stephens v. Department of the Air Force
01A23108
July 31, 2003
.
Lolitah Stephens,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23108
Agency Nos. 7K0J99005
7K0J99006
7K0J99007
Hearing Nos. 150-A0-8248X
150-A0-8270X
150-A0-8271X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her formal complaints 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. For the following reasons, the Commission
affirms the agency's final order.
The record reveals that complainant, a Custodial Worker at the agency's
Visiting Airmen's Quarters at the Sand Dollar Inn, Tyndall Air Force
Base, Florida, filed three formal EEO complaints in which she alleged
discrimination on the basis of reprisal for prior EEO activity when (1)
in April 1996, employees were told to clock in and out, but not all
employees were made to do so; (2) on October 21, 1997, complainant's
supervisor failed to provide her with a ride so that she could clock out;
(3) on October 21, 1997, complainant's supervisor checked rooms assigned
to her but did not check rooms assigned to other employees; (4) on July 7,
1997, her performance appraisal was downgraded for the year of 1996-1997;
(5) on September 1, 1997, she was not paid for the Labor Day holiday;
(6) management officials failed to follow negotiated room standards and
work schedule; (7) on August 12, 1998, she was told during a meeting
that she was making a scene and was ordered to return to her work area;
(8) on September 2, 1998, all employees were ordered to go home due to
inclement weather and not given administrative leave; (9) on October
5, 1998, her performance appraisal for 1997-1998 was lowered; (10)
she was denied leave without pay from July 6, 1998 to July 13, 1998;
(11) employees were allowed to have visits from family and friends while
on duty; (12) management officials entered documents into her AF Form
971 record without her knowledge on various dates from June 25, 1997
through March 16, 1999; (13) on October 5, 1998, she received a letter of
reprimand for being tardy on eight occasions; (14) on January 14, 1999,
a management official stated during a meeting that employees working the
�grandfather work schedule� would continue to do so; (15) on February 8,
1999, she was issued a letter of reprimand; (16) she was denied annual
leave on March 22, 1999, and March 26, 1999; and (17) she was suspended
from March 23, 1999 through March 25, 1999.
After accepting all three complaints and conducting an investigation,
complainant was informed of her right to have a hearing before an
EEOC Administrative Judge (AJ) or, in the alternative, an immediate
final decision from the agency. Complainant opted to have a hearing.
Consequently, her cases were forwarded to the appropriate EEOC District
Office and assigned to an AJ. After examining the statement under oath
of the various witnesses and other materials in the case file, the AJ
determined that there was no genuine issue of material fact and therefore
issued a decision without a hearing in which she found complainant had
not been discriminated against as alleged. The agency adopted in full
the AJ's decision. Complainant appealed.
At the outset, we note that the AJ dismissed allegations (1), (2), (4),
(5), (7), and (8) because they were not brought to the attention of an
EEO counselor in a timely manner. The record reflects that the above
enumerated allegations occurred between the period of April 1996, and
September 2, 1998, and the earliest that complainant contacted an EEO
counselor regarding any of the allegations in her complaints was November
19, 1998. Our regulations provide that claims of discrimination should
be brought to the attention of an EEO counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within forty-five (45) days of the effective
date of the action. See EEOC Regulation 29 C.F.R. � 1614.105(a)(1).
Here, it is clear that the above allegations were not brought to the
attention of an EEO counselor within the requisite time period. Moreover,
complainant did not provide a justification for the extension of the
forty-five day time period. Therefore, the Commission finds that the
AJ's actions regarding these allegations were appropriate. In so doing,
we note that the AJ and the agency were silent as to allegation (3),
which occurred on October 21, 1997, and allegation (10), which occurred
on from July 6, 1998 to July 13, 1998. Neither allegation was brought
to the attention of an EEO counselor in a timely manner. Consequently,
those allegations are dismissed as well.
The AJ dismissed allegations (6), (11), and (14) for failure to state
a claim because complainant did not identify with specificity whether
these incidents only affected her or everyone in the workplace. The AJ
reasoned that these allegations as framed by complainant appeared to be
a change of agency policy that affected all employees equally. Further,
regarding allegation (12), the AJ ruled that complainant did not identify
with specificity the substance of the documents that were placed in her
AF Form 971 record. Consequently, the AJ concluded that complainant
failed to present evidence that she was an aggrieved employee regarding
these four allegations. After a review of the record, the Commission
finds that the AJ's dismissals of these allegations were proper.
The AJ then turned her attention to the merits of the remaining
allegations. Regarding allegations (9) and (13), the AJ ruled
that complainant failed to establish a prima facie case of reprisal
discrimination because she did not present evidence that the responsible
management official had knowledge of her prior EEO activity of June 1996,
and the adverse actions (the lowered performance appraisal and letter
of reprimand on October 5, 1998) did not take place within such a time
period that a retaliatory motive could be inferred.
Next, the AJ examined that agency's legitimate, nondiscriminatory reasons
for its remaining actions. Concerning the letter of reprimand issued
on February 8, 1999 (allegation 15), the agency stated the letter was
issued because complainant failed to report to work or call in to let a
management official know that she would be absent on January 18, 1999.
The agency further stated that complainant was denied leave on March 22,
1999, and March 26, 1999, because the agency had previously approved the
leave requests for two other employees on those same days. The agency
noted that complainant was informed that she could take leave in April
1999, the next month. Finally, the agency stated that complainant
received a suspension from March 23, 1999 to March 25, 1999 because
she missed two meetings, even after being reminded by her supervisor on
several occasions, that were scheduled to discuss her penchant for being
tardy to work. The AJ concluded by finding that complainant failed
to present evidence that the agency's stated reasons were pretext for
discrimination.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant because of her prior EEO activity.
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
July 31, 2003
__________________
Date