01A31078r
02-12-2004
Lillie Johnson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Lillie Johnson v. Department of Veterans Affairs
01A31078
February 12, 2004
.
Lillie Johnson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A31078
Agency No. 200H-0309-2001104187
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination. The appeal is accepted pursuant to 29
C.F.R. � 1614.405.
The record reveals that complainant, a Program Clerk, GS-6, at the
agency's Newark, New Jersey facility, filed a formal EEO complaint on
September 12, 2001, alleging that the agency had discriminated against her
on the basis of reprisal for prior EEO activity (arising under Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.) when:
(1) On July 27, 2001, management informed complainant that her request
for leave without pay (LWOP) for July 23 through July 27, 2001, was
denied and she was charged 36 hours absent without leave (AWOL); and
In a memorandum dated August 7, 2001, management informed her that her
request for LWOP for three months was denied and she was being placed
on AWOL status.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a final agency decision.
In a decision dated October 22, 2002, the agency found no discrimination.
Specifically, the agency found that the agency proferred legitimate,
non-discriminatory reasons for both of complainant's claims that were
not persuasively rebutted by complainant as unlawful discrimination
or retaliation.
As a preliminary matter, we note that we review the decision on an
appeal from a final agency decision de novo. 29 C.F.R. 1614.405(a).<1>
Accordingly, we have carefully reviewed the entire record before us in
our attempt to discern whether a preponderance of the evidence warrants
a modification of the agency's remedial ruling. See 29 C.F.R. 1614.405(a).
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this matter, complainant's supervisor responded that when complainant
requested LWOP in July 2001, she was advised by the Director that
complainant could not take LWOP, but had the option of leaving work
and taking AWOL or brief administrative leave. The supervisor further
stated that she did not grant complainant LWOP "because of the fact that
it would impact on other members within our division." The supervisor
stated that there was a backlog of work and if complainant missed work,
it would have created a hardship on the agency because others would have
to compensate for her absence. The supervisor said that complainant
was placed on AWOL because she took leave despite being denied LWOP.
Regarding complainant's request for three months LWOP, the agency
responded that complainant was likewise denied this request because of
a heavy backlog of work in the agency at the time. Complainant failed
to present persuasive rebuttal evidence that the agency's reasons for
its actions were pretext for retaliation. Consequently, we find that
the agency properly found no discrimination.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
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
February 12, 2004__________________
Date
1 We note that complainant alleges that the agency's investigator
failed to include copies of certain documents complainant submitted
for inclusion in the Report of Investigation. On appeal, complainant
alleges that these documents would support her claim. Although she did
not submit copies of the documents on appeal, she did submit a copy of
a summary of the evidence contained in those documents. Upon review,
we decline to find that the investigation was incomplete or that the
documents complainant submitted were relevant to the issue of whether
the agency's denial of LWOP was motivated by retaliatory animus.