E.E.O.C.
Office of Federal Operations
Phyliss Noakes
v.
Department of the Air Force
Appeal No. 03810077
February 05, 1982
 
DECISION
 
On May 28, 1981, Phyliss Noakes (hereinafter referred to as petitioner) initiated a timely petition to the Equal Employment Opportunity Commission (EEOC) for review of the initial decision of the Merit Systems Protection Board (MSPB) rendered April 29, 1981 on her allegations of discrimination based on race (black), sex (female), and reprisal in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. Because the petition involves an agency action which was initiated subsequent to January 10, 1979, the effective date of the Civil Service Reform Act of 1978, it is governed by the provisions of that Act and EEOC Regulations 29 C.F.R. 1613.414 et seq. (Federal Register, Vol. 45, No. 147, July 29, 1980).
 
On June 3, 1980, the attached initial decision of the MSPB became the Board's final decision in this proceeding.
 
The Commission has carefully considered the record in its entirety and the attached decision in light of the allegations of discrimination. The Commission has decided to affirm the MSPB's final decision as the attached decision accurately states those facts relevant to the issues of discrimination and, except as herein modified, correctly applies the pertinent principles of law.
 
To the extent that the decision of the MSPB implies that persons of the same race and/or sex cannot discriminate against one another the Commission wants to correct such an implication. The fact that those agency officials who recommended and decided that petitioner be removed were of the same race and/or sex as petitioner does not automatically eliminate the possibility that petitioner's removal was a discriminatory agency action based on race and sex. With the foregoing modification, the Commission finds that the MSPB's legal analysis of petitioner's claims of race and sex discrimination was correct. Petitioner has proffered no evidence that, in being removed, she was treated differently than were male or non-black employees. In short, petitioner has failed to present evidence sufficient to sustain a finding that the challenged action of the agency was the result of consideration having been given to her race or sex by those officials who proposed and decided to remove her from employment.
 
With respect to petitioner's reprisal claim, the Board's legal and factual analysis of this issue was also correct. In addition, the record establishes that those agency officials who proposed petitioner's removal at issue and made the decision to remove her played no part whatsoever in her previous complaint of discrimination, the resolution of which resulted in petitioner's reinstatement. The Commission finds, as a result, that the agency, in removing petitioner from employment, did not engage in a prohibited discriminatory act.
  
CONCLUSION
 
Based upon a review of the record, the decision of the Equal Employment Opportunity Commission is to concur with that part of the MSPB's final decision which found that petitioner's removal was not discrimination against her based on her race or sex or based on her prior EEO activities.
  
NOTICE OF RIGHT TO FILE A CIVIL ACTION
 
Pursuant to 29 C.F.R. 1613.417(d) the petitioner is hereby notified that the Commission concurs with the decision of the Merit Systems Protection Board and that she has a right to file a civil action and seek a trial de novo in the appropriate United States District Court of the matter decided by the Merit Systems Protection Board within thirty (30) calendar days of receipt of this decision.
  
APPOINTMENT OF COUNSEL
 
If you do not have an attorney, or are unable to obtain the services of one, upon your request, the District Court may, in its discretion, appoint counsel to represent you.
 
 
FOR THE COMMISSION:
 
Executive Officer Executive Secretariat IN THE MATTER OF PHYLLIS E. NOAKES v. DEPARTMENT OF THE AIR FORCE Decision Number DC07528110248 Date April 29
Executive Officer
Executive Secretariat
 
INTRODUCTION
 
Appellant filed an appeal from the agency's action removing her from the position of Sales Store Checker, GS-3, effective December 15, 1980.
  
JURISDICTION
 
The action appealed was effected under subpart D of Part 752 of the Office of Personnel Management regulations, which was promulgated pursuant to OPM's authority under 5 USC 7514. The record reflects that appellant was a covered employee as defined by subpart D, and was entitled to appeal this action to the Board. See 5 USC 7511(a)(1)(A), 7512, 7513(d); 5 CFR 752.401(a), 752.401 (b)(1), 752.405(a). I therefore find that the appeal is properly before the Board for adjudication.
  
ANALYSIS AND FINDINGS
 
By memorandum dated November 7, 1980, the agency proposed appellant's removal for the following reasons:
 
a. Negligence. Specifically, on 30 July 1980, you were assigned to cash register number 6. From the start of your shift at 0800 until 1100 you did not run your detail tape in the cash register. You did not advise your supervisor that the detail tape was not being used nor that you were having trouble with your cash register. As a result, no individual sales can be identified during that period. The first documented sale on your detail tape was a sale made at 11:01 A.M. for $97.48. The detail tape identifies the cashier as number 213 which is your cashier number.
 
b. Careless workmanship. Specifically, on 30 July 1980, you were assigned to cash register number 6. On your AF Form 2359, Commissary Daily Checker Record for 30 July 1980, your cash register for that day showed a gross sales of $5968.82 while you (operator 213) operated cash register number 6. With a gross sales of $5968.82 plus the $100 change fund (loan) which you started with at the beginning of your shift, you should have turned in a total of $6068.82 for 30 July 1980. Your AF Form 2359 shows that $4978.30 was picked up from you during the day in the following manner: first pick-up: a total of $2860.33 which consisted of $260 in cash, $2572.01 in checks, and $28.32 in coupons; second pick-up: a total of $2117.97 which consisted of $890 in cash, and $1227.97 in checks. At the end of your shift, you turned in the remaining monies in your cash drawer which was a total of $987.17 including $266.81 in cash, $700.48 in checks and $19.88 in coupons. You counted and signed for this record of your monies for that day. Total money turned in by you in cash, checks, and coupons was $5965.47 which was $103.35 short of your gross total sales and change fund which you started with at the beginning of the shift.
 
c. Careless workmanship. Specifically, on 10 October 1980, on your AF Form 2359, Commissary Daily Checker Record, your cash register for that day showed a gross sales of $3614.88 minus a void of $4.45 for a total gross of $3610.43. This amount, $3610.43, plus the $100 change fund (loan) which you started with at the beginning of your shift, is what you should have turned in, a total of $3710.43, for 10 October 1980. Your AF Form 2359 shows that $1675.67 was picked up from you during the day in the following manner: $1040 in cash, $628.80 in checks and $787 in coupons. At the end of your shift, you turned in the remaining monies in your cash drawer which was a total of $1995.02 including $1664.78 in cash, $314.35 in checks, $2.92 in coupons and $12.97 in refunds. You counted and signed for this record of your monies for that day. Total money turned in by you in cash, checks, coupons, and refunds was $3670.69 which was $39.74 short of your gross total sales and change fund which you started with at the beginning of the shift.
 
d. Lack of courtesy to customer in violation of written directives. Specifically, on 14 October 1980, at about 1640, a customer, Lt. T. M. Storch, USN, was standing in line at register 3 where you were working. When he was next to put his groceries on the conveyor belt, the customer in front of him told him that you had just told her that she would be the last customer. Lt. Storch looked around and counted 8 more people in line. Lt. Storch asked you if he would be checked out since he had been waiting in line for a half hour. You ignored him. He then went to the Commissary office where Mrs. Arrington came out and told you to check him out. As soon as Mrs. Arrington left, you started complaining to other cashiers about not caring what customers did. When Lt. Storch began to fill out a check for his purchase, you left the conveyor belt running and groceries of the next person in line began to get mixed up with his purchase. When that customer left to complain at the office, you started to laugh and said something to the effect, 'I told that fool woman that I wasn't going to check her out and now she has her food all mixed up with yours.' This incident on your part violates Complex Operating Instructions, Commissaries, Cashier Procedures, paragraph 3o dated April 1980.
 
e. Insubordinate defiance of authority. Specifically, on 14 October 1980, at approximately 1645 Mrs. Arrington, Assistant Supervisory Sales Store Checker, came to you at cash register number 3 after she had received a customer complaint from Lt. Storch. Mrs. Arrington directed you not to close down with a line of customers and that she would get you a relief cashier as soon as she could. You told Mrs. Arrington that it was time for you to get off. Mrs. Arrington advised you that you had ten more minutes to work. You replied that you still had to count your money. Mrs. Arrington again told you not to close until she could get someone to replace you. With that Mrs. Arrington left. Shortly thereafter, you appeared at the cashier window in the office. Another customer walked up to the window saying the cashier at register number 3 had closed. Mrs. Barber was in the process of replacing you but you did not wait to close as you had been directed by Mrs. Arrington on two occasions.
 
f. Careless workmanship. Specifically, on 23 October 1980 at approximately 1204 PM you did not properly follow paragraph 3g, Complex Operating Instructions, Commissaries, Cashier Procedures, dated April 1980. A customer gave you a twenty dollar bill for a total purchase including surcharge of $9.57. According to the customer, Mrs. King of 5733 Janice Lane, Temple Hills, Maryland, you only gave her $.43 and did not give her the remaining $10 change due her. You contended you did. Both of you then went to the cashier's office where you advised Bernadette Barber, a Cash Clerk in the office, that you would like your cash drawer counted since you might not have given the customer the $10 change. You should have properly counted all the customer's change due her as required by paragraph 3g, Complex Operating Instructions, Commissaries, Cashier Procedures, dated April, 1980.
 
g. Careless workmanship. Specifically, on 29 October 1980, at 2:05 PM, you accepted a $20 American Express Traveler's check from a customer. You took this check and rang it into your cash register as a $220 negotiable instrument.
 
h. You were suspended from duty without pay for five calendar days effective 9 September 1980 for insubordinate defiance of authority in refusing to comply with a proper order.
 
Appellant submitted a written reply to the proposal notice on November 18, 1980. By memorandum dated December 2, 1980, the Assistant Commissary Store Manager issued a final decision which stated that the reasons as cited in the proposal notice were sustained, and warranted appellant's removal.
 
In support of reason a., the agency presented the testimony of the Assistant Supervisory Sales Store Checher who was on duty on July 30, 1980, as well as the sales store checker who ultimately fixed appellant's detail tape, and a copy of the detail tape in question (Agency File, Tab 8). In her reply to the proposal notice, appellant stated that the detail tape cannot be seen by a cashier when the register is in operation, and that a warning buzzer had failed to function. She also stated that the difficulty with the detail tape was not discovered until she 'called her supervisor over with regard to a failure of the main tape.' However, at the hearing before me, she testified that the detail tape was broken soon after she began waiting on customers that day, and that she did send someone to the office to ask for help. (TR p. 142). She also testified that she and 'quite a few other girls' attempted to repair the tape during the morning. (TR p. 143).
 
Appellant's representative attempted to explain appellant's conflicting statements by asserting that he had not had enough time to confer with his client prior to submitting the written reply to the proposal notice. However, attached to the reply was an affidavit signed by appellant attesting to the truth and accuracy of the statements made in said reply. I therefore find that appellant's inconsistent sworn statements do not speak well of her credibility. Moreover, the testimony of Mrs. Arrington, the Assistant Supervisory Sales Store Checker, and Ms. Tolson, a sales store checker who was working in the office on July 30, 1980 establish that appellant did not report the fact that her detail tape was broken until Ms. Tolson went to help appellant with a different matter. (TR pp. 65, 91-92). Ms. Tolson also testified that when she replaced the detail tape on appellant's register, she did remove a small amount of the original tape. (TR p. 257). However, her description of the length of the tape indicates that appellant's register had been in operation only a short time before the detail tape broke. I therefore find that appellant was aware that her detail tape was not functioning, and that she failed to bring this fact to her supervisor's attention in a timely manner, as alleged. I further find that reason a. is sustained.
 
Reasons b. and c. both concern alleged careless workmanship on appellant's part with respect to shortages in funds turned in by her on the two dates in question. The record contains copies of the AF Forms 2359 referenced in the proposal notice. In addition, Mrs. Arrington testified as to the procedures followed on the two dates in collecting and counting the media (cash, checks, etc.) received from appellant, as well as the efforts made by management personnel to locate the sources of the shortages. Appellant alleged that the collection and counting procedures are improper, and that many people had opportunities to take money from her cash drawer. She testified that an employee in the cash office, Ms. Bernadette Barber, had told another employee, Ms. Joyce Singleton, that she was out to get the appellant and had been taking money from appellant's cash pan. (TR p. 146). However, Ms. Barber denied making any such statement and denied that she ever stole money from appellant's pan. (TR p. 250). In addition, Ms. Singleton, appellant's own witness, denied that Ms. Barber ever made such a statement to her. (TR p. 219).
 
In summary, I find that appellant has failed to support her allegations of error or impropriety on the part of management officials on July 30, 1980 and October 10, 1980. I further find that the preponderance of the evidence supports the facts as cited in reasons b. and c., and that said reasons are sustained.
 
Reasons d. and e. both concern an alleged sequence of events on October 14, 1980. Appellant denied any knowledge or recollection of the facts alleged with respect to Lt. Storch, and denied that Ms. Arrington told her not to close until relieved. (TR p. 150-151, 180). However, the record contains signed statements from Lt. Storch, Mrs. Arrington, Ms. Tolson, and two other commissary employees which were prepared on or soon after the date in question. In addition, Lt. Storch Mrs. Arrington, and Ms. Tolson provided sworn testimony at the hearing which was fully supportive of the facts as cited. I therefore find that reasons d. and e. are supported by the preponderance of the evidence and are sustained.
 
Reason f. is not supported by the preponderance of the evidence. The agency stipulated that when appellant's pan was counted in the presence of Mrs. King, there was an overage of only $.14. Mrs. King did testify that appellant gave Ms. Barber some money from her pocket prior to Ms. Barber's count. (TR p. 106). However, both appellant and Ms. Barber testified that appellant did obtain change for a twenty dollar bill, but that this took place after the count. (TR. pp. 154, 253). In light of the fact that appellant's pan did not contain an extra $10 when counted and, absent a showing that appellant added any money to her pan prior to the count, I find that reason f. is not sustained.
 
Reason g. was admitted by appellant. (TR p. 6). However, at the hearing, she raised for the first time an allegation that she informed her supervisor of the error at the time it was made, and that the supervisor told her that she would take care of it later. (TR p. 155). However, the supervisor testified that appellant never so informed her, and that she had to spend time at the end of the day tracking down appellant's shortage. (TR pp. 47, 48, 246). The problems with appellant's credibility mentioned above, together with the fact that she did not raise this excuse at the time of her reply to the proposal notice, lead me to find that her testimony in this matter is not worth of belief. I further find that reason g. is sustained.
 
Reason h. cited a prior suspension. However, at the outset of the hearing, the agency took the position that the incident forming the basis for the suspension should be treated as a current charge rather than past record because appellant's grievance with respect to the suspension was still pending. In addition, appellant' reply to the notice of proposed removal included a copy of her response to the proposed suspension action, as well as a copy of her grievance with respect thereto. The grievance alleged that the decision to suspend was issued prior to the agency's receipt of her reply, an allegation which is borne out by a September 11, 1980 letter from the deciding official in that matter. (Agency File, Tab 1). The Board has no jurisdiction over suspensions of 14 days or less, and I certainly will make no findings with respect to the procedural aspects of the prior action. 5 USC 7512, 7701. However, in light of the facts in this particular case, I find that appellant was entitled to contest the facts underlying the suspension action, and that the agency's assumption of the burden to prove said facts by a preponderance of the evidence was proper.
 
The incident in question occurred on July 31, 1980, the day following appellant's shortage of $103.35. The agency contends that appellant, after being informed of the previous day's shortage, stated that she would not run a register that day, and that she wanted emergency annual leave to see the Base Commander. Leave was denied, and appellant was then informed by the Commissary Officer that he would make an appointment for her with the Base Commander, but that she should report to her register and begin work. The Commissary Officer allegedly twice repeated his directive that appellant should report to work. Appellant allegedly refused to go to work, and proceeded to call the Base Commander's office to make her own appointment. Appellant reported for work at 8:30 a.m., thirty minutes after the start of her shift.
 
In support of the foregoing facts, the agency submitted signed statements from the Commissary Officer, the Store Manager, the Assistant Store Manager and Ms. Barber, as well as the sworn testimony of the Commissary Officer and the Assistant Store Manager. In her reply to the proposed suspension, appellant admitted that she refused to go to work, but that this was due to the fact that she was quite upset over the $103.35 shortage and that she was ill. At the hearing, appellant testified that she requested sick leave at 7:30 a.m. on July 31, 1980 and that all the calls that she made were prior to her starting time. (TR pp 171, 178). However, every other witness stated that the request was for emergency annual leave to go see the Base Commander, and that said request was not made until 8:00 a.m. or later. I find that the overwhelming weight of the evidence supports the charge of insubordinate defiance of authority, and that reason h. is sustained.
 
In connection with her appeal, appellant alleged discrimination on the basis of race/color (black) and sex (female). However, the official who proposed appellant's removal was a black female, and the deciding official was also black. She did allege disparate treatment in that a white female employee had a shortage of nearly $2000.00 and had not been disciplined. However, the testimony revealed that said incident was under investigation, and that no action would be taken until the investigative report was received. In addition, the employee in question had a good work record and no other charges pending. Appellant also presented the testimony of several other black female employees who made vague, non-specific allegations of racial bias on the part of management. However, appellant has failed to show any relevant disparate treatment of herself or other black females, or otherwise establish a prima facie case of discrimination. McDonnell Douglas v. Green, 411 U.S. 792(1973); McDonald v. Sante Fe Trail Transportation Co., 426 U.S. 273.
 
Appellant also alleged that the removal action was taken in reprisal for her prior EEO activities. She testified that she was reinstated to her position in 1979 as the result of a successful complaint of discrimination in connection with a termination in 1977, and that management had been trying to 'get rid of her' since she returned. However, appellant failed to show any causal connection between her prior protected activity and the instant action, or otherwise show that the removal action was taken for any reasons other than those cited by the agency. Buerklin v. Department of the Air Force, MSPB Dkt. No. DA035109043 (1/23/80).
 
In summary, I find that neither discrimination no reprisal was a factor in appellant's removal. I further find that the agency has shown that its decision was supported by a preponderance of the evidence, and that the sustained charges warranted appellant's removal to promote the efficiency of the service. 5 USC 7513(a), 7701(c)(1)(B).
  
DECISION
 
The action effecting appellant's removal is hereby affirmed.
 
This is an initial decision and will become a final decision of the Merit Systems Protection Board on JUN 3 1981 unless a petition for review is filed with the Board or the Board reopens on its own motion.
 
Any party to this appeal, the Director of OPM, and the Special Counsel may file a petition for review. The Director may request review only if he is of the opinion that the decision is erroneous and will have a substantial impact on any civil service law, rule, ore regulation under the jurisdiction of the Office of Personnel Management. The Board may grant a petition for review, after providing an opportunity for response by the other parties, when it is established that:
 
(1) New and material evidence is available that, despite due diligence, was not available when the record was closed; or (2) The decision of the presiding official is based upon an erroneous interpretation of statute or regulation.
 
All petitions for review shall set forth objections to the initial decision, supported by reference to applicable laws and regulations, and with specific reference to the record. The petition for review must be filed with the Secretary to the Merit Systems Protection Board, Washington, D.C. 20419, no later than JUN 3 1981. Three copies of the petition must be filed with the Secretary.
 
The appellant has the right to petition the Equal Employment Opportunity Commission to consider the Board's final decision on the issue of discrimination. The appellant also has the right to file a civil action under the antidiscrimination laws in any appropriate U.S. district court. Either a petition to EEOC or a civil action in a U.S. district court may be filed no later than 30 days after appellant's receipt of the final decision.
 
Except for actions filed under the antidiscrimination laws, a petition for judicial review of a final Board decision must be filed in the appropriate U.S. Court of Appeals or the U.S. Court of Claims no later than 30 days after receipt of notice of the Board's final decision.
 
For the Board:
 
Joseph E. Clancy Presiding Official