01972738
09-20-1999
Andrea Mersiovsky, Appellant, v. Togo D. West, Secretary, Department of Veteran's Affairs, Agency.
Andrea Mersiovsky, )
Appellant, )
) Appeal No. 01972738
v. ) Agency No. 96-0386
)
Togo D. West, )
Secretary, )
Department of Veteran's Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges she was discriminated against when: (1) on or about
September 28, 1995, she became aware that management officials conspired
to deny her benefits under the Office of Worker's Compensation Program
(OWCP), when it claimed to have sent her a viable job offer; and (2) on
or about September 28, 1995, she became aware that management officials
withheld vital information regarding her rights under the OWCP.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as an Electronic Technician at the Department of Veteran's Affairs
Medical Center, Temple, Texas. As background, appellant alleged that
beginning in 1985, she was sexually harassed by one of her co-worker's,
who later became her supervisor. She subsequently filed an EEO complaint
against the individual, but alleges the harassment did not stop when she
complained to management. Appellant stated that she suffered intense
stress and as a result, could not function. In response to appellant's
concerns, the agency launched an internal investigation, which found
that although there had been no witnesses to appellant's allegations of
physical touching by the co-worker, there had been corroboration of his
name calling and hostility towards appellant. As a result, the agency
ordered sensitivity training, and the reassignment of appellant, which
was at her request. Although appellant was placed under the supervision
of another individual, she was still under stress due to her belief that
she was being retaliated against for her EEO activity when her workload
intensified. During this period, appellant filed several EEO complaints.
As a result of the harassment, appellant filed an OWCP claim,
charging that she had suffered work related stress. Appellant's health
deteriorated during the summer of 1993, and she was placed on extended
sick leave while she sought psychiatric day treatment at a hospital.
The record reveals that appellant withdrew her EEO complaints on
August 23, 1993. Moreover, appellant resigned from agency employ in
August 1993.<1> In September 1993, the Department of Labor (DOL)
notified appellant that her OWCP claim had been denied due to an
inability to establish that an injury had been sustained as alleged.
Appellant filed for reconsideration of her OWCP claim in November 1995,
which was later denied.
Two years later, in October 1995, appellant reviewed her OWCP file and
discovered that the agency had sent her a job offer for a position at
the agency's Information Resource Management (IRM) office back in June
of 1993. However, as it was mailed to her prior address, appellant
maintained that she never received it. The OWCP file also revealed
that the job offer had been approved by appellant's then physician.
Also contained in the OWCP file was a reference to a �record of contact�
that the agency's OWCP Specialist had allegedly had with appellant in
June 1993. Specifically, the �record of contact� reported that on June
21, 1993, appellant spoke with the Specialist and declined the job offer.
Appellant testified that she had no recollection of speaking with the
Specialist on that date, and testified that she had not received the job
offer because it had been sent to the wrong address. She testified
further that around the time the job offer had allegedly been sent,
she changed doctors, which is why her physician never notified her of
the job offer.
Appellant's complaint and testimony surround her allegations that
management officials conspired to deny her OWCP benefits by purposefully
mailing the job offer to her old address, and denied her appeal rights for
her OWCP claim, in reprisal for her prior EEO activity. Believing she
was a victim of discrimination, appellant sought EEO counseling and,
subsequently, filed a complaint on November 14, 1995. At the conclusion
of the investigation, appellant failed to request a hearing. On January
28, 1997, the agency issued a final decision finding no discrimination.
The FAD concluded that appellant established a prima facie case of
reprisal discrimination when she demonstrated that management officials
were aware of her prior EEO activity when it allegedly sent the job
offer the wrong address, and allegedly denied her the appropriate OWCP
appeal rights. The agency found that the adverse actions occurred in
close proximity to her EEO activity, such that a causal connection could
be presumed.
The FAD also found that the agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the Chief
of Human Resources Management Services (Chief) testified that a job
offer at the agency's IRM office was offered to appellant in an effort
to lessen the agency's potential long term OWCP costs, and to provide a
working environment in which appellant could perform.<2> With respect to
appellant's second allegation, the Chief testified that he believed that
appellant had been supplied the OWCP rights, and supplied documentation
in support thereof.
The OWCP Specialist testified that he mistakenly sent appellant's job
offer to her prior address. He maintained that appellant had received
the job offer because he spoke with her on June 21, 1993, when she
declined the position. He testified that the job offer had not been
sent certified mail, and therefore there was no way to document whether
appellant had in fact received the letter. However, he also testified
that the Post Office usually returns mail which is undeliverable, and
that he therefore believes that the Post Office, or the recipient of
appellant's letter forwarded the mail to appellant.
The OWCP Specialist testified that although he reported to the DOL
that appellant had declined the job offer, her failure to accept the
job offer did not affect her claim. Instead, appellant's OWCP claim
was denied due to insufficient medical evidence contained in the file.
According to the OWCP Specialist, the DOL must determine whether the
claim is compensable before it determines whether the job offer is viable
or not. With respect to appellant's second allegation, he testified
that appellant had been sent the appropriate OWCP appeal rights.
A co-worker of appellant's testified that the agency has also sent him
OWCP information to an incorrect address in the past. He testified that
he does not believe a job offer was ever made to appellant. Instead,
he believed the OWCP Specialist �made up� the job offer when he later
realized that appellant had a compensable stress-related illness, since
he (the Specialist) is required to show OWCP that he made a job offer
for appellant, and that she refused it.
On appeal, appellant contends that the agency conducted an inadequate
investigation. She maintained that she never received the job offer,
and never declined the position during a conversation with the OWCP
Specialist on June 21, 1993. She testified that she had not lived at
the address the job offer had been sent for the prior two years, and that
she had received other documents from the agency at her correct address.
She maintains that she would have accepted the offer, as she wished to
change offices.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that appellant failed to establish
that the agency's reason for its actions are pretext for discrimination.
We note that appellant has failed to prove that the agency intentionally
misdirected the job offer in an effort to deny her OWCP benefits in
reprisal for her prior EEO activity. We note that the record reveals
that appellant was denied OWCP benefits for failing to submit adequate
medical documentation. Furthermore, appellant has failed to persuade
us that the Chief or the OWCP Specialist were motivated by a desire
to retaliate against appellant for engaging in prior EEO activity.
Specifically, appellant has not shown that either individual was involved
in appellant's prior EEO activity, or would have had an interest in
its outcome. Appellant herself conceded in her affidavit that the
misdirection of her job offer may have only been a mistake.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the 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 the
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 the 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 the 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 the 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:
9-20-99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Appellant filed an
appeal with the Merit Systems Protection Board
regarding her allegation of constructive discharge.
2The EEO Investigator explained that in an effort to reduce OWCP
liabilities, agency's often offer OWCP claimants light duty, reduced
workload, or reassignments, depending on the nature of their illness.