01970295
11-18-1998
Maria Levenson, Appellant, v. Togo D. West Jr., Secretary, Department of Veteran's Affairs, Agency.
Maria Levenson v. Department of Veteran's Affairs
01970295
November 18, 1998
Maria Levenson, )
Appellant, )
) Appeal No. 01970295
v. ) Agency Nos. 93-2356
) 94-1336
Togo D. West Jr., ) 95-0166
Secretary, ) EEOC Nos. 270-95-9068
Department of Veteran's Affairs, ) 270-95-9069X
Agency. ) 270-95-9070X
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had
not discriminated against her in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq., and the Age
Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. �621 et seq.
The Commission accepts this appeal in accordance with EEOC Order
No. 960.001.
Appellant, a GS-9 Medical Technologist, filed three formal complaints
of discrimination which were consolidated for hearing. In her first
complaint, appellant claimed discrimination on the bases of race
(Caucasian), national origin (Lithuanian), age (52), and reprisal (prior
EEO activity) when she was given a written counseling on February 9,
1993 when the agency found an error in her TSH assay performed on January
28, 1993. In her second complaint, appellant claimed discrimination on
the bases of race, national origin and reprisal when she was given a
written memo concerning errors that she made while processing patient
samples. In her third complaint, appellant claimed discrimination on
the bases of race, national origin, age and reprisal when she received
an admonishment on August 22, 1994. The agency accepted the complaints
and conducted investigations. At the conclusion of the investigations,
appellant requested a hearing before an Equal Employment Opportunity
Commission administrative judge (AJ). A hearing was conducted on November
8, 1995.
On July 2, 1996, the AJ issued a recommended decision (RD) finding no
discrimination. The AJ concluded that appellant failed to establish a
prima facie case of discrimination on the bases of race, national origin
and age in that she failed to show that she was treated differently or
less favorably than similarly situated employees outside of her protected
groups. However, the AJ did find that appellant established a prima facie
case of discrimination on the basis of reprisal. Assuming arguendo that
appellant established a prima facie case of disparate treatment, the
AJ found that the agency had articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the agency showed that appellant
had committed serious errors and if she was treated any differently than
others it was because she was more error prone than the other employees.
Furthermore, the agency showed that the errors committed by other
employees were minor in comparison with appellant's, and were within
acceptable ranges. Finally, the AJ recommended that the agency find
that appellant was not discriminated against, as alleged.
On September 11, 1996, the agency issued a final decision adopting
the AJ's finding of 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, with the exceptions as noted
below, sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. The Commission has reviewed the parties'
statements on appeal and discerns no basis in which to disturb the AJ's
finding of no discrimination.
Specifically, we note, as did the agency, that testimony revealed that
appellant was the only employee who received counseling in a written form.
Although the AJ's decision stated that other employees were counseled
verbally and in writing, we note that the written counseling received
by other employees only consisted of "problem isolation reports" as
opposed to specific counseling memorandum, which appellant received.
Although appellant presented evidence that other employees made mistakes
in the lab, she failed to produce sufficient evidence that rebutted
the agency's contention that her errors were more serious than those
committed by other employees. For example, the admonishment appellant
received was in response to appellant's second failure of the College
of American Pathologists Laboratory Survey used to determine whether
laboratories are operating at crediting standards. Accordingly, it is
the decision of the equal Employment Opportunity Commission to AFFIRM
the agency'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 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. �1614.604(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. 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 (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 18, 1998
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations