01a54453
10-05-2005
Hildred A. Morris, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Hildred A. Morris v. Department of Veterans Affairs
01A54453
October 5, 2005
.
Hildred A. Morris,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54453
Agency No. 200J-0541-2004101327
Hearing No. 220-2004-00156X
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. Complainant alleges discrimination
on the basis of age (over 40) when:
1. On January 7, 2004, complainant was terminated during her
probationary period.
2. On December 19, 2003, complainant was denied an opportunity to be
reassigned from the Inpatient Coding Section to the Medical Cost Care
Recovery Section as an Accounts Receivable Analyst, GS-7.
Complainant's trainers constantly hollered and reminded her that she
was performing unsatisfactorily in her job as an Inpatient Coder during
her period of probation.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
on May 10, 2005, finding that complainant had not been discriminated
against. Specifically, the AJ found that the agency presented a
legitimate, nondiscriminatory reason for its actions, which complainant
failed to rebut.
On May 17, 2005, the agency issued a decision finding no discrimination.
The agency fully implemented the AJ's decision. Thereafter, complainant
filed the instant appeal.
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.
We find that the agency articulated a legitimate, nondiscriminatory reason
for its actions. Regarding claim 1, the agency stated that complainant
was terminated during her probationary period for failing to perform
in a satisfactory manner. The agency said that, despite the fact all
of complainant's work had been subject to review following her transfer
to the Brecksville facility, complainant's work product remained below
standards. Moreover, the agency reported that complainant did not produce
the amount of work required of a GS-8 Medical Records Technician and
frequently made coding errors.
With respect to claim 2, the agency said that, while complainant
was interviewed for the Accounts Receivable Analyst, GS-7, position,
complainant never officially applied for the position.
As to claim 3, the agency stated that complainant was not yelled
or hollered at by any trainer during her period of probation.
The agency commented that the complained of actions have no �age�
related connotations and they simply mirror the trainers' perception
of complainant's slow learning curve and inability to perform her job
duties to standard. The AJ stated that these remarks were not sufficiently
severe or pervasive to rise to the level of harassment.
The Commission finds that complainant failed to show that the agency's
reasons are pretext for discrimination. Furthermore, complainant
failed to show, by a preponderance of the evidence, that she was
discriminated against on the basis of age. The Commission also finds
that the AJ properly determined that complainant withdrew the basis of
race discrimination.
The agency's decision finding no discrimination is AFFIRMED.
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
October 5, 2005
__________________
Date