Henrietta Artis, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 24, 2004
01a34501 (E.E.O.C. Nov. 24, 2004)

01a34501

11-24-2004

Henrietta Artis, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Henrietta Artis v. Department of Veterans Affairs

01A34501

November 24, 2004

.

Henrietta Artis,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A34501

Agency No. 200R-0542-2002101659

Hearing No. 170-A2-8486X

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.

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �

1614.405. For the following reasons, the Commission affirms the agency's

final order.

The record reveals that complainant, a Medical Clerk GS-5 at the agency's

Medical Center in Coatesville, Pennsylvania, filed a formal EEO complaint

on March 15, 2002. She alleged that the agency had discriminated against

her on the bases of her race (African-American) and her age (D.O.B. March

16, 1956) when:

(1) she was reassigned to the Ward Administration unit on January

30, 2002;

she was issued an admonishment for failure to follow procedures for

requesting leave; and

she was placed on a performance improvement plan on January 3, 2002.

At the conclusion of the investigation, 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.

The AJ concluded that complainant failed to establish a prima facie

case of race or age discrimination because she failed to show that

similarly situated employees, not in complainant's protected class,

were treated differently. In addition, the AJ found that complainant

failed to rebut the agency's contention that she had performance

problems which resulted in her being reassigned to another position.

Although complainant claimed that the reason for her poor performance was

that she was not properly trained to perform certain aspects of her job,

the AJ concluded that complainant received continuous on-the-job training.

Even so, the AJ found that complainant's performance problems persisted.

Specifically, the agency presented evidence that complainant failed to

properly maintain �control points� regarding accounts assigned to her,

such that management could not rely on the information in her reports.

Additionally, complaints had been received that payments to vendors on

complainant's accounts were late.

The AJ credited the agency's managers testimony that they placed

complainant on a performance improvement plan (PIP) after two audits of

her accounts revealed unsatisfactory performance. She found no evidence

of discriminatory animus. Although complainant questioned the agency's

motives based on the early termination of the PIP, the AJ found that

there was no need for continuation of the PIP because complainant was

reassigned to another position.

With respect to the letter of admonishment, the AJ found that no other

similarly situated employee had been treated more favorably under

similar circumstances. In particular, there was no evidence that any

other employees had not been disciplined after leaving work without prior

approval. Thus, the AJ concluded that complainant failed to prove that

her race or her age were factors motivating the issuance of the written

reprimand. According to the testimony of complainant's supervisor,

complainant left the office without informing her or another supervisor.

Complainant did not credibly refute that the written medical excuse she

left under her supervisor's door, did not give her permission to leave

work early. For these reasons, the AJ found that complainant did not

establish that more likely than not, the agency's articulated reasons

were a pretext to mask unlawful discrimination. The agency's final

order implemented the AJ's decision.

Complainant makes no new contentions on appeal, and the agency requests

that we affirm its final order.

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). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, the Commission finds that the

AJ's findings of fact are supported by substantial evidence in the

record and that the AJ's decision properly summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

Complainant failed to present evidence that any of the agency's actions

were motivated by discriminatory animus toward complainant's race or age.

Therefore, we find no basis to disturb the AJ's decision and we affirm

the agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

November 24, 2004

__________________

Date