01972186
03-03-1999
Erma J. Brooks, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Erma J. Brooks, ) Appeal No. 01972186
Appellant, ) Agency No. AR000970004
v. ) Hearing No. 360-96-8621X
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. See EEOC Order No. 960.001. In her
complaint, appellant alleged that she was discriminated against based
on her sex, race (Black) and reprisal for her prior EEO complaint when:
(1) her supervisor kept �black book� information without appellant's
knowledge, particularly regarding entries made pertaining to incidents
occurring on June 8, and September 27, 1993; (2) her supervisor made two
entries, in November 1992, and January 1993, which were based on hearsay,
to appellant's personal records; (3) her supervisor recorded only negative
aspects of appellant's performance, particularly on December 11, 1992,
without mentioning the positive aspects; (4) on September 27, 1993, her
supervisor did not ask appellant for her side of a story and concluded
that she was at fault; (5) her supervisor asked appellant's subordinate,
in appellant's presence, about appellant's fitness to attend a training
class; (6) her supervisor lied when she accused appellant of �terroristic
threatening� (i.e. that appellant threatened to cut the supervisor's
throat and kill her); (7) on December 11, 1992, her supervisor reworded
statements said to appellant so that it appeared that appellant made the
statements; (8) appellant was subjected to the most severe penally for a
first-time offense; (9) her supervisor showed favoritism by not informing
the Black employees in appellant's flight when appellant was ill for
three days or when her mother died, with the result that appellant did
not receive get well cards or certain expressions of sympathy; and (10)
her supervisor made an unnecessary entry on February 2, 1994, regarding
an unreported absence.
Appellant timely sought EEO counseling and filed her instant EEO
complaint, which was accepted and investigated by the agency.<1>
Thereafter, appellant timely requested a hearing before an EEOC
Administrative Judge ("AJ"). After the hearing, the AJ issued a
recommended decision ("RD") finding no discrimination. The agency
adopted the RD as its FAD.
In the RD, the AJ found as follows: At the time in question, appellant
was employed as a Supervisory Computer Assistant, GS-8. In early 1994,
appellant was removed from the supervision of the supervisor whose actions
are challenged in her complaint. Shortly after this, appellant discovered
that her personnel file contained entries made by the supervisor on part
B of a 971 Form, which is used to record comments and events occurring
during the year, such as letters of appreciation, counseling sessions,
performance or conduct.
Most of appellant's allegations concern the entries made by her
supervisor on this form. Noting that the agency had offered a legitimate,
nondiscriminatory reason for each of the entries, the AJ assumed that
appellant had established a prima facie case of discrimination and
reprisal (see United States Board of Governors v. Aikens, 460 U.S. 711
(1983)) and carefully discussed each of appellant's allegations. The AJ
found that credible testimony established that the supervisor made
entries for all of her subordinates, often without notifying them, and
that the supervisor had in fact recorded each award appellant received
while under the supervisor's command. In those incidents where the
supervisor did not first question appellant's version of the events
recorded, the AJ found that the supervisor acted reasonably and was not
motivated by discrimination or retaliation. The AJ found that appellant
had made the statements regarding threatening to kill the supervisor,
noting that appellant had plead guilty in Federal Court to the charge of
making terroristic threats. The AJ was not persuaded that appellant was
subjected to discrimination when her supervisor proposed to terminate her
employment for this offense, or when appellant ultimately was suspended
for two weeks, even though the penalty range for the first-time offense
of threatening bodily harm ranges from a reprimand to termination.
The AJ also was not persuaded that appellant was treated differently
than others with respect to her illness or her mother's death, noting
that the supervisor had gone to the hospital on several occasions during
the mother's illness, signed an office sympathy card and took food to
the house.
The AJ noted that there was a long history of animosity, interpersonal
conflict and considerable friction between appellant and the supervisor,
and that appellant had serious difficulties in accepting her supervision,
believing that she was more qualified than the supervisor. However,
the AJ was not persuaded that the supervisor's actions were motivated by
discrimination or reprisal. Rather, the AJ found that the supervisor
�would have been remiss as a supervisor had she not made the Form 971
entries which [appellant] found objectionable� and that appellant had
�allowed her intense dislike for [the supervisor] to cloud her judgement
and taint her actions.� RD at 25, 26.
On appeal, appellant presents numerous arguments, including that: the
Commission's prior remand of her complaint for processing demonstrates
that her allegations were meritorious; her hearing was postponed; she was
told to lie during a polygraph examination; and the AJ denied certain
of her requested witnesses while accepting �as the gospel truth� the
testimony of the agency's witnesses. Appellant also presents many of the
same arguments that she made before the AJ, including a denial that she
made terroristic threats and that, in any event, the discipline imposed
was too harsh for a first-time offense. In its comments on the appeal,
the agency argues that the AJ properly determined that appellant failed
to establish discrimination or reprisal.
After a thorough review of the record (including argument and evidence
not specifically addressed herein), the Commission finds that the RD
adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. In general, the Commission will not
disturb the credibility determination of an AJ when, as here, such
determinations are based on the AJ's observations of the demeanor of
the witnesses. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990). Therefore, it is the decision
of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
March 3, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The agency initially dismissed all of the allegations for various
reasons, but this dismissal was reversed by the Commission, which ordered
processing of the complaint. See EEOC Appeal No. 01943888 (June 9, 1995).