0120093066
07-12-2012
Lorene Lang-Moody, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lorene Lang-Moody,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01-2009-3066
Hearing No. 443-08-00129XX
Agency No. 200505782007104177
DECISION
On July 20, 2009, Complainant filed an appeal from the Agency's June 18, 2009, final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse, Community Health Home Based Care, at the Agency's Hines, Illinois facility.
On October 30, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) and subjected her to harassment when:
1. On January 18, 2007, management did not properly document her compensation time;
2. On January 19, 2007, her first line supervisor (S1) denied her eight hours of approved official time for INA duties;
3. On February 28, 2007, management disapproved her request for INA training;
4. On March 20. 2007, her supervisor "gave her a difficult time" with respect to attending a monthly leadership meeting with other INA members;
5. On March 21, 2007, S1 denied her request to attend a meeting with her second line supervisor (S2), to resolve a grievance matter;
6. On March 27, 2007, management "subjected her to accusations" of discrepancies in her documentation of medical records;
7. On May 24, 2007, management denied her request to leave work early for a doctor's appointment;
8. On May 25, 2007, management issued her a Letter of Counseling for tardiness, which was later rescinded;
9. On June 6, 2007, S1 failed to sign off on an NNEI letter stating that her school and work schedules did not conflict;
10. On June 11, 2007, management changed her tour of duty due to repeated tardiness but later rescinded this action;
11. On July 27, 2007, management denied her request to attend the AA conference in Chicago, yet her coworker (CW1), was able to attend;
12. On August 8, 2007, management issued her a letter of inquiry for failure to follow instructions on June 15, 2007;
13. On August 9, 2007, management issued her a letter of inquiry regarding allegations of demonstrated hostility and unprofessional conduct and failure to follow her supervisor's instructions;
14. On August 9, 2007, management issued her a letter of inquiry for failure to follow proper policy and procedure regarding her overtime request on May 22, 2007;
15. On August 22, 2007, S1 sent her a memo regarding her voicemail message not including her pager number and giving the impression that she was on vacation, when in reality she was on duty, resulting in S1 providing a scripted message for her use;
16. On September 10, 2007, management issued her a proposed admonishment for working disapproved overtime but later rescinded the admonishment;
17. On September 11, 2007, management issued her a letter of inquiry (notice of AWOL) for a half hour on September 11, 2007, but later rescinded the AWOL charge;
18. On September 18, 2007, management issued her a letter of inquiry (notice of AWOL) for eight hours on September 14, 2007, but later rescinded the AWOL charge;
19. On September 19, 2007, S1 instructed her to report to her office once her meeting with an EEO representative concluded;
20. On September 25, 2007, S1 spoke to her in a "harsh tone," and, after the complainant informed her that she was going to Employee Health, S1 responded, "You can't leave," blocked the door, preventing the complainant from exiting, and pushed the complainant's arm as she passed by her;
21. On September 27, 2007, management issued the complainant a letter of inquiry (notice of AWOL) for fifteen minutes on September 25, 2007, but later rescinded the AWOL charge;
22. On an unspecified date, management "downgraded" her annual evaluation;
23. On an unspecified date, upon being issued her performance evaluation, she noted that her former supervisor, S1, had input into the evaluation, "attacking her personally and professionally," despite having requested that she not have input, and never received a copy of the input, although she requested a copy;
24. On an unspecified date, two supervisors accompanied her on her annual supervisory visit; and
25. On an unspecified date, she received a statement from the union vice president, stating that S2 had "made threats to terminate her" and had stated that her clothing revealed cleavage and that she had enough information to terminate her regarding her email and for coming in after hours.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request on the grounds that complainant failed to prosecute. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not file any contentions on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
After a review of the record, we find the preponderance of the evidence in the record supports the agency's reasons for its actions, and find no evidence of pretext. Further, we find no evidence of harassment based on complainant's race. Rather, the record supports the agency's position that complainant was obstinate, tardy and had had performance problems. The record reveals the agency attempted to issue complainant progressive discipline to correct complainant's performance problems, but ultimately rescinded most of the actions when complainant contacted her union. There is no evidence that complainant was treated harsher than any other employee; rather, the opposite is evident from the record. There is no evidence in the record of any racially discriminatory motive, other than complainant's own unsubstantiated belief that she was treated differently than others.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
07/12/12
__________________
Date
2
01-2009-3066
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013