01A43711_r
11-01-2004
Alalia Mack, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Alalia Mack v. Department of Veterans Affairs
01A43711
November 1, 2004
.
Alalia Mack,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A43711
Agency No. 99-4696
Hearing No. 220-A1-5163X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, formerly a Nurse Manager at
the agency's Cincinnati Veterans Affairs Medical Center facility,
filed a formal EEO complaint on November 10, 1999, alleging that the
agency had discriminated against and harassed her on the bases of race
(African-American) and reprisal for prior EEO activity when since August
5, 1999: (1) complainant was demoted and reassigned; (2) subjected to
hostile working conditions; (3) received a �low satisfactory� proficiency
report; and (4) subjected to other terms and conditions of employment.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
Demotion
The AJ concluded that complainant failed to establish a prima facie case
of race or reprisal discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees not
in complainant's protected classes were treated differently under similar
circumstances when she was demoted from her position as a Nurse Manager,
to a staff position.
The AJ found that complainant had received a �low satisfactory�
proficiency report and was unable to identify any other nurse managers,
reporting to the same agency official, who likewise had received a �low
satisfactory� evaluation, who had not been demoted. The AJ further
found that complainant had not shown that the responsible management
officials were aware of any prior participation in the EEO complaints
process by complainant, and thus did not establish reprisal as a basis
for any of the adverse actions cited in her complaint.
Working Conditions/Terms of Employment
The AJ found that complainant was not aggrieved by the change in her
working conditions after complainant challenged the agency's decision to
terminate one of complainant's subordinates, nor by the agency's actions
that occurred after the time she was notified of her demotion, namely,
the agency's decision to escort complainant to her office to retrieve
her personal items and then to her car, while denying complainant the
opportunity to speak to her staff. Complainant failed to show any actual
harm or loss in connection with the delay of her proficiency report, nor
were the incidents described sufficiently severe or pervasive to state
a claim of harassment. Moreover, complainant was unable to identify
any other employees, who had also been demoted, but who did not also
suffer a financial loss of two steps, as complainant had.
Accordingly, the AJ determined that discrimination had not occurred.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that she has established a prima
facie case of race discrimination regarding her demotion in that she
was replaced by a person outside of her protected class, namely, by a
Caucasian employee. Complainant further argues that the reasons cited
by the agency in support of its decision to demote her are unworthy
of belief and that this evidence was established at the hearing.
Complainant states that, among other things, her performance did not
warrant the �low satisfactory� rating she received and that her testimony
rebutted the agency's witnesses who claimed that complainant's confusing
schedules had caused employees to not report for work when the schedules
were changed and that complainant's trivial errors and scheduling habits
were insufficient to warrant her demotion.
Complainant argues that, unlike other demoted employees, the agency
chose to escort her from the building because she is African-American,
and not for any legitimate business consideration. Complainant contends
that if the agency's actions were intended to help complainant with her
personal effects, complainant's request that she be permitted to remove
her things by herself should have been honored.
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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We find that
the evidence supports the AJ's finding that no other employee receiving a
�low satisfactory� rating was treated any better by the agency. Further,
we concur with the AJ that the events described in complainant's complaint
do not establish a hostile work environment in that the incidents (delayed
proficiency report, escorted to her office and car after being notified of
her demotion, and being denied the opportunity to speak with her staff)
were neither severe nor sufficiently pervasive to alter the conditions
of her employment, and that complainant sustained no loss from these
incidents sufficient to render her aggrieved. The Commission finds
that complainant has failed to show by a preponderance of the evidence
that any of the alleged agency actions, including the demotion, were
motivated by discrimination on the bases of race or in retaliation for
protected activity. We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, we AFFIRM the agency's final order finding no
discrimination.
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
November 1, 2004
__________________
Date