01975447
11-25-1998
Gloria Hojonowski-Rempfer, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Gloria Hojonowski-Rempfer v. Department of Veterans Affairs
01975447
November 25, 1998
Gloria Hojonowski-Rempfer, )
Appellant, )
)
v. ) Appeal No. 01975447
) Agency No. 96-0066
Togo D. West, Jr., ) Hearing No. 170-96-8120X
Secretary, )
Department of Veterans Affairs, )
Agency. )
___________________________________)
DECISION
On July 7, 1997, Gloria Hojonowski-Rempfer (appellant) timely appealed
the final decision of the Department of Veterans Affairs (agency),
dated May 30, 1997, concluding she had not been discriminated against in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. In her complaint, appellant alleged that agency officials had
discriminated against her on the basis of her disabilities (degenerative
arthritis in wrist, herniated discs in cervical spine, mitral valve
prolapse and bronchial asthma) when, in July 1995, she was issued a
ten-day suspension from work. This appeal is accepted in accordance
with the provisions of EEOC Order No. 960.001.
At the time this matter arose, appellant was employed as a Veterans
Claims Examiner, GS-7, in the agency's Regional Office and Insurance
Center in Philadelphia, Pennsylvania. The record indicates that appellant
was absent from work from November 3, 1994 to January 17, 1995, on sick
leave. It appears from the record that this leave was used because of
appellant's own medical problems and because she was caring for a son
terminally ill with AIDS. Upon her return to duty on January 19, 1995,
appellant submitted two medical certificates from two different physicians
documenting the reasons for her absence. Agency officials subsequently
learned that appellant had altered these two notes to extend the period
which her doctors had certified she was medically unable to work.
In a meeting with management on January 26, 1995, appellant admitted
to altering at least one of these certifications. On March 28, 1995,
appellant was issued a notice of proposed suspension for twenty days for
falsification of medical documentation. Appellant submitted a response to
the proposal, and on July 18, 1995, the agency issued appellant a final
notice of suspension, which had been reduced from twenty to ten days.
The suspension became effective on July 31, 1995.
On September 22, 1995, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against her
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On May 1, 1997, the AJ, pursuant to 29 C.F.R. �1614.109(e)(3),issued a
decision without a hearing concluding no discrimination had occurred
in this matter. In that decision, the AJ found appellant failed to
establish even a prima facie case of disability discrimination because
there was no evidence that any other similarly situated employee was
treated more favorably than appellant.<1> In addition, the AJ noted that
the record contained no other evidence which might raise an inference
of discrimination
On May, 30, 1997, the agency adopted the findings and conclusions of
the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns
no basis to disturb the AJ's finding of no discrimination. Nothing
proffered by appellant on appeal differs significantly from the arguments
raised before, and given full consideration by, the AJ. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which adopted the AJ's finding of no
discrimination.
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. � l6l4.604(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. 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:
Nov 25, 1998
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission notes that appellant's complaint only raises issues
of disparate treatment and not reasonable accommodation.