01972467
06-21-1999
Lou E. Woodward, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Lou E. Woodward, )
Appellant, )
) Appeal No. 01972467
v. ) Agency Nos. LAOJ95018
) LAOJ95038
F. Whitten Peters, ) LAOJ95057
Acting Secretary, ) Hearing Nos. 360-95-8315X
Department of the Air Force, ) 360-95-8316X
Agency. ) 360-95-8317X
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (female), reprisal
(prior EEO activity), and physical disability (Papillary Thyroid
Cancer), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.; and the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791, et seq. Appellant alleges she was
discriminated against on the bases of sex and disability when: (1)
she was charged as absent without leave (AWOL) on November 21, 1994;
(2) her supervisor (S1) gave favorable job assignments and free time
for medical appointments to male co-workers; (3) she was harassed
for a six to eight week period prior to her surgery on December 2,
1994; (4) she was subjected to harassment based on sex when S1 made a
derogatory comment about her during a picnic on October 14, 1994; and
(5) S1 provided an investigator from the Office of Personnel Management
(OPM) false information about her during a background investigation.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a temporary GS-4 Grounds Inspection
Clerk in the 37th Engineering Housing Office at Lackland Air Force Base,
Lackland, Texas, filed three formal EEO complaints with the agency in
1995, alleging that she was discriminated against as referenced above.
At the conclusion of the investigations, appellant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) Administrative
Judge (AJ). The AJ consolidated the complaints, held a hearing, and
issued a Recommended Decision (RD) finding no discrimination.
Concerning issue (1), the record reveals that although appellant informed
a senior co-worker of her need for emergency leave on November 21,
1994, neither the individual serving as timekeeper nor S1 were aware
of the circumstances surrounding appellant's absence, and S1 directed
the timekeeper to mark appellant as AWOL. In January, 1995, after S1
learned why appellant was absent, appellant's time records were changed
to reflect sick leave, and she was reimbursed the four hours originally
charged as AWOL. Because S1 was unaware of appellant's medical diagnosis
in November, 1994, the AJ concluded that appellant failed to establish a
prima facie case of disability discrimination.<1> The AJ also concluded
that appellant presented insufficient evidence to show that the agency's
articulated reason for charging her AWOL was pretextual.
Regarding issue (2), appellant alleged that S1 treated her male co-workers
more favorably by granting them time off for medical reasons, and by
favoring males when making job assignments. Appellant specifically
alleged that a male co-worker did not have to perform housing referral
updates, but S1 required her to perform such updates. The AJ found that
contrary to appellant's allegations, the male co-worker also performed
housing referral updates. Furthermore, S1 testified that he permitted
time off for medical reasons for both male and female employees, and
that appellant never requested such time off. Appellant admitted she
never asked, and thus was never denied, such time off. Accordingly,
the AJ concluded that appellant failed to establish a prima facie case
of sex discrimination.
Concerning issues (3) and (4), appellant alleged that S1 made two
derogatory remarks and harassed her about her work and her continual
use of sick leave. S1's first remark concerned an obscene comment
about appellant's sexual orientation during a picnic and outside
her presence. Appellant also alleged that S1 stated that a street
named �Lou street� probably was �an alley that led to a garbage dump.�
Concerning S1's first remark, the AJ found that the evidence did not
establish who made the remark, but S1 was disciplined for condoning it.
S1 admitted to making the second remark but stated it was meant as a joke.
Appellant's co-workers testified that S1 and appellant did not get along,
that S1 had an abrasive personality and that S1 treated everyone poorly.
Furthermore, although S1 questioned her use of leave, appellant admitted
she was never denied leave. The AJ concluded that S1's conduct was not
sufficiently severe or pervasive to constitute a hostile environment on
the basis of sex.
In issue (5), appellant alleged that S1 deliberately provided false
information to an OPM investigator in retaliation for her prior EEO
activity, and that as a result, the OPM investigator issued an unfavorable
report which precluded her from obtaining an extension of her temporary
employment. According to the OPM investigator's report, both S1 and a
co-worker of appellant provided a less than favorable reference, noting
among other things, appellant's difficulty with S1. The AJ concluded
that appellant established a prima facie case of retaliation because
S1's statements to the investigator closely followed her EEO activity,
of which S1 was aware. The AJ found, however, that neither S1 or the
co-worker provided false information to the investigator, and it was
her poor employment history which, more likely than not, resulted
in the unfavorable report. The AJ concluded that appellant failed to
demonstrate that retaliatory animus more likely than not motivated S1's
unfavorable reference to an OPM investigator.
The agency's FAD adopted the AJ's RD. On appeal, appellant restates
arguments previously made at the hearing and offers various arguments in
support of her contention that the AJ erred in finding no discrimination
or harassment. The agency responded to appellant's appeal brief and
requests that we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies and laws. We note that the agency's actions
were more likely than not the result of a personality conflict, and
not in retaliation for appellant's prior EEO activity or motivated by
discriminatory animus toward her sex. We also agree with the AJ's
conclusion that S1's remarks, either considered alone or together
with appellant's other allegations, do not constitute actionable
harassment. See Haley v. Department of the Air Force, EEOC Appeal
No. 01950216 (August 29, 1996). We discern no basis to disturb the AJ's
findings of no discrimination which were based on a detailed assessment
of the record. Therefore, after a careful review of the record,
including appellant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The Commission
notes that the AJ also concluded that appellant
failed to demonstrate she was substantially
limited in any major life activities because
she was out a few weeks for surgery and returned
without restrictions. Thus, the AJ concluded that
appellant failed to establish she was disabled
within the meaning of the Rehabilitation Act.