01A05093
03-15-2001
Perette L. Sheppard, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Perette L. Sheppard v. Department of the Air Force
01A05093
March 15, 2001
.
Perette L. Sheppard,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A05093
Agency No. OP0R97001
Hearing Nos. 370-98-X2454;370-98-X2455
DECISION
Complainant timely initiated an appeal 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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she
was discriminated against on the bases of race (Black), sex (female),
and reprisal when:
(1) her supervisor did not adjust her work hours, would not allow her
to �swap� positions with other employees, stated that a male employee
was too much of an asset, and �played favorites�; and
she was terminated from her employment, effective January 10, 1997,
after initiating an initial EEO complaint on December 23, 1996.
For the following reasons, the Commission affirms the agency's final
order.
BACKGROUND
The record reveals that the complainant, a probationary Recreation
Aid, NF-0189-1 at Osan Air Force Base, South Korea, filed formal EEO
complaints with the agency on January 14, 1997 and February 24, 1997,
alleging that she was discriminated against as referenced above. At the
conclusion of the investigation, the complainant received a copy of the
investigative report and
requested a hearing before an EEOC Administrative Judge (AJ). Following a
hearing, the AJ issued a decision finding no discrimination.
Regarding her first complaint (issue #1, above), filed on January 14,
1997, the AJ concluded that the complainant failed to establish a prima
facie case of race and sex discrimination. Specifically, the AJ found
that the complainant failed to demonstrate that she was similarly situated
with the other employees with whom she compared herself.
Regarding the second complaint (issue #2, above), filed on February 24,
1997, the AJ concluded that the complainant had established a prima
facie case of reprisal. The AJ further concluded, however, that the
agency articulated legitimate, non-retaliatory reasons for its actions,
and that the complainant did not establish that more likely than not, the
agency's articulated reasons were a pretext to mask unlawful retaliation.
The agency issued a Final Order on June 14, 2000, fully implementing
the decision of the AJ. From this Final Order, complainant now appeals.
ANALYSIS AND FINDINGS
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).
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). See Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979) (applying McDonnell Douglas to age cases). First, complainant
must establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next,
the agency must articulate a legitimate, nondiscriminatory reason(s)
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the agency is successful, then the complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
In order to establish a prima facie case, a complainant may show that
she is a member of a protected class, that she was subjected to adverse
treatment, and that she was treated differently than otherwise similarly
situated employees outside of the protected class. See Potter v. Goodwill
Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). In the present
case, as regards the issues of race and sex-based discrimination,
the AJ found that the complainant was unable to meet this test because
she was unable to show that she was similarly situated with the other
employees at the Youth Center with whom she compared herself. Instead,
the AJ essentially found that the Youth Center was overstaffed at
the time, and that the complainant, as a new employee, did not have an
established position at the Youth Center, while the other employees were
in established positions and had more seniority. Furthermore, the AJ
found that while the work schedules of other employees were accommodated
first, such �favoritism� was not based on race or sex, but on seniority.
The AJ's findings further showed that the complainant, who had previously
been working at the School Age Care (SAC) program, had to arrange a swap
with a Youth Center employee, (CW1: Black, female), in order to work at
the Youth Center. CW1 was initially interested in working at SAC, but
subsequently changed her mind and remained at the Youth Center despite
the complainant's transfer to the Youth Center.
The complainant denies that the Youth Center was overstaffed, contending
that another employee, CW 2, eventually left the Youth Center, thus
reducing the staffing levels. She further argues that the other employees
were given more hours, including overtime, thus reducing the number of
hours available for her, and that this constitutes evidence of animus
towards her, since paying overtime to other employees was more expensive
for the agency when she was available to work those hours at regular pay.
Finally, she essentially argues that the more established employees were
not entitled to the preferential treatment they received.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws as regards both issues.
Given that the complainant did not move into a vacant position at the
Youth Center, but instead had to arrange a swap with a Youth Center
employee, and that while the complainant's transfer went through,
the transfer of CW1 did not, so that both the complainant and CW 1
subsequently remained at the Youth Center, the Commission finds the
AJ's finding that the Youth Center was overstaffed to be supported by
substantial evidence in the record. Even if another employee subsequently
left the Youth Center, the fact remains that the complainant had the
least seniority of all the employees at the Youth Center and thus was
not similarly situated with them.
As regards the complainant's argument concerning the paucity of hours she
was given, the Commission notes that the complainant has not disputed
the fact that, when attempts were made to provide her with additional
hours at the Teen Center, she declined because the late hours were
inconvenient for her. While her supervisor, (RMO 1; Black, male),
testified that the reason he would not allow her to swap positions at
the Teen Center with two male co-workers at the Youth Center was because
both men were active-duty military and could be called up for military
exercises at any time, the complainant has offered no evidence that this
decision was a pretext for discrimination.
As regards issue of reprisal, the Commission agrees with the AJ's finding
that the complainant has established a prima facie case of reprisal, given
the close proximity in time between the complainant's filing of her first
EEO complaint, and her termination. The AJ noted that the complainant
received her notice of separation the day after the EEO counselor had
interviewed the complainant's supervisor. The Commission further concurs
with the AJ's finding that the agency articulated several legitimate
reasons for its action. These reasons included assertions by the agency
that the complainant had taken leave without authorization on January 4,
1997, that Youth Center clients and employees had complained about her,
that she showed no initiative regarding planning and programming, and
that she disregarded management directives.
Because the agency has articulated legitimate, nondiscriminatory
reasons for its action, the burden shifts to the complainant to prove,
by a preponderance of the evidence, that such legitimate reasons
were a pretext for discrimination. See Burdine, 450 U.S. at 256.
Following a careful review of the evidence, the Commission agrees with
the AJ's finding that the complainant has failed to meet this burden.
The complainant has offered no rebuttal to the assertion that she showed
no initiative regarding planning and programming. In addition, by the
complainant's own testimony, she provided no more than 24 hours notice
of her inability to work on January 4, 1997. Assuming the veracity of
her contention that she was never instructed on how to properly request
leave, such a contention does not demonstrate that the agency's proffered
reasons for her termination were pretextual.
The complainant has argued that the agency is lying about the complaints
against her, and asserts that she did indeed follow management
directives. Three of the complainant's supervisors (all Black males)
testified that there were complaints by co-workers and Youth Center
clients against the complainant. The AJ found the testimony of RMO 2,
the complainant's second line supervisor, to be particularly credible.
In addition, two co-workers from the Youth Center (both black males)
testified that they personally complained about the complainant's work
habits and attitude, providing specific details of various incidents.
These co-workers also testified that they heard complaints against her
from Youth Center clients.
The complainant, in rebuttal, was only able to offer testimony from
her supervisor at the SAC, (RMO 3: White, female) who testified that
the complainant was a good employee during the four weeks she worked at
the SAC, but who knew nothing of the complainant's work habits once the
complainant transferred to the Youth Center. The complainant, however,
was unable to offer any testimony or sworn affidavit from anyone at the
Youth Center, whether client, co-worker, or supervisor, to support her
assertion that the agency was lying about the complaints against her.
After reviewing the testimony and affidavits, the Commission agrees
with the AJ who found the testimony concerning the complaints against
the complainant to be credible. The Commission further notes that the
complainant failed to rebut the agency's assertion that she showed a
lack of initiative and took unauthorized leave.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race and/or sex. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 15, 2001
__________________
Date