0120064667
04-04-2008
Wanda Thomas, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Wanda Thomas,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200646671
Hearing Nos. 150-2006-00056X, 150-2006-00063X
Agency Nos. 200I-0546-20051011151, 200I-0546-2005101837
DECISION
On May 10, 2006, complainant filed an appeal from the agency's May 25,
2006, final decision (FAD) 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Medical Clerk at the agency's Medical Center in Miami, Florida.
The record reveals that complainant was placed in the Surgical Service
as a Medical Clerk. On February 14, 2005, complainant filed an EEO
complaint alleging that she was discriminated against on the basis of race
(African-American) when:
1. on January 20, 2005, complainant's supervisor (S1) did not return
school reimbursement forms given to the responsible management official
(RMO) in November, 2004; and
2. as of February 7, 2005, management failed to provide complainant
with a completed position description (PD) and failed to assign her
appropriate work based on an accurate PD.
Complainant later filed a second EEO complaint on April 28, 2005,
alleging that the agency discriminated against her on the basis of her
race (African-American) and in reprisal for prior EEO activity when:
3. on February 25, 2005, management gave her a 30-day Counseling
of Performance;
4. on February 14, 2005, management issued her a proposed 14-day
suspension (sustained on March 7, 2005); and
5. on or about February 3, 2005, management tasked her with the
duty of shredding documents.
At the conclusion of the investigation, complainant was provided 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. On March 20, 2006, the AJ granted the agency's motion
requesting that the AJ order complainant to respond to the agency's
discovery request. The AJ's order also stated that failure to comply
could result in sanctions, including dismissal from the hearing process.
When complainant failed to respond, on March 30, 2006, the agency filed
a motion for sanctions and requested that the AJ dismiss the complaint.
On April 21, 2006, the AJ dismissed complainant's hearing request for
failure to comply with the AJ's orders. The AJ remanded the complaint
to the agency.
The agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b), concluding
that complainant failed to prove that she was subjected to discrimination
or retaliation as alleged. Specifically, the agency found that
complainant failed to establish a prima facie case of race discrimination
in any of her claims because she failed to present evidence of similarly
situated individuals outside of her protected class who were treated
more favorably. Further, the agency found that complainant failed to
show a connection between her race and the actions taken by management.
With regard to complainant's retaliation claim the agency found that
complainant established a prima facie case of retaliation. The agency
further found that assuming arguendo that complainant established a prima
facie case of race and retaliation, the agency articulated legitimate,
nondiscriminatory reasons for its actions. With regard to claim (1), due
to budgetary restraints, the agency was unable to reimburse complainant,
and therefore did not submit the forms to her school. Further, S1
stated that complainant's poor work performance also contributed to
the decision to not reimburse complainant. With regard to claim (2),
S1 stated that complainant was provided with the Medical Clerk, GS-4,
position description numerous times, but complainant refused to accept
that position description. With regard to claim (3), the Employee Labor
Relation Specialist (ELRS) stated that complainant was placed on the
performance plan since management officials complained about her poor
customer service skills and her poor work performance. With regard to
claim (4), the ELRS stated that complainant was placed on a fourteen day
suspension due to her disrespectful conduct on two occasions and for being
asleep while on duty. With regard to claim (5), S1 stated that shredding
documents was within complainant's clerical duties. The agency found that
complainant failed to put forth any evidence to prove that the agency's
legitimate, nondiscriminatory reasons were a pretext for discrimination.
The agency found that even though complainant alleged that S1 was
overheard making derogatory comments about African-Americans, complainant
failed to put forth any evidence to substantiate her allegation. Further,
S1 denied that she made such a comment. As such, the agency found that
complainant failed to establish that she was discriminated against or
retaliated against as she alleged.
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); EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999).
Regarding the issue of sanctions, the Commission's regulations afford
broad authority for the conduct of hearings by Administrative Judges.
29 C.F.R. �1614.109 et seq.; Waller v. Department of Transportation,
EEOC Appeal No. 0720030069 (May 25, 2007); Rountree v. Department of
Treasury, EEOC Appeal No. 07A00015 (July 13, 2001); EEOC Management
Directive 110, Chapter 7, Section III, (November 9, 1999) (MD-110).
When a complainant or agency fails to comply with an AJ's order, an AJ
may take action against the noncomplying party pursuant to 29 C.F.R. �
1614.109(f)(3), up to and including issuing a decision in favor of the
opposing party. The parties are required to abide by the orders and
requests of the AJ to provide the investigative file, documents, records,
comparative data, statistics, affidavits, and attendance of witnesses.
MD-110, Chapter 7, Section III; Waller v. Department of Transportation,
EEOC Appeal No. 0720030069 (May 25, 2007). Noncompliance, without good
cause shown, can result in sanctions against the non-complying party.
Waller v. Department of Transportation, EEOC Appeal No. 0720030069 (May
25, 2007); 29 C.F.R. � 1614.109(f)(3). Before sanctions are imposed, the
Commission requires the AJ to issue an order to the offending party that
makes clear that sanctions may be imposed and the type of sanction that
could be imposed for failure to comply with an order unless the party can
show good cause for that failure. See Rountree, supra. A showing that
the noncomplying party acted in bad faith is not required. See Cornell
v. Department of Veterans Affairs, EEOC Appeal No. 01974476 (November
24, 1998). Complainant makes numerous contentions on appeal regarding
the processing of the case but does not make any arguments about why she
failed to respond to the AJ's order. Complainant argues that individuals
other than the agency's designated representatives were filing documents
before the AJ. We find no evidence to substantiate her argument that
the agency or the AJ engaged in any inappropriate conduct. As such, we
find that the AJ appropriately dismissed complainant's hearing request.
Turning to the merits of complainant's claims, we find that complainant
failed to demonstrate that the agency's actions were based on racial
animus or retaliatory intent. Complainant failed to proffer any evidence
to support her contentions that this was the case. Further, we note that
complainant failed to put forth any evidence to contradict the agency's
position that complainant was performing poorly or had performance
issues. In fact, the affidavit testimony of many employees supported
the agency's position that complainant, who was once a good employee,
became a difficult one. Accordingly, based on a thorough review of the
record and the contentions on appeal, including those not specifically
addressed herein, we affirm the agency's FAD finding that complainant
failed to establish by a preponderance of the evidence that she was
discriminated or retaliated against as she alleged.
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
____04-04-2008______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120064667
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064667
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