01A24647
06-25-2003
Caratonya Ford, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Caratonya Ford v. Department of Veterans Affairs
01A24647
June 25, 2003
.
Caratonya Ford,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24647
Agency No. 99-5358
Hearing No. 140-A0-8320x
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, a Program Support Assistant, GS-5,
at the agency's Extended Healthcare Services, Dorn Veterans Affairs
Medical Center, located in Columbia, South Carolina, filed a formal
EEO complaint on September 22, 1999, alleging that the agency had
discriminated against her on the basis of race (African-American) and
in reprisal for prior EEO activity by subjecting her to harassment when:
(1) the agency ignored her April 15, 1999 request for a copy of her
position description until May 26, 1999, at which time she received an
altered performance appraisal;
on June 23, 1999, files were missing from her filing cabinet;
on or about June 19, 1999, her supervisor (S1) allegedly told one of
complainant's former co-workers that because S1 was not pleased with
complainant's work, complainant �would not be around long;�
On July 1, 1999, S1 allowed a co-worker (CW1) to tell complainant what
to do;
on or about July 20, 1999, she was given a difficult time after
requesting leave;
whenever a Caucasian employee made accusations about complainant to S1,
complainant received verbal counseling from S1;
on July 28, 1999, complainant received an e-mail message from CW1
criticizing her job performance;
on July 28, and 29, 1999, the customer service standard that applied
to Caucasian employees did not apply to complainant;
on July 29, 1999, complainant was assigned to schedule tour, although
she was not given authorization to do so;
in July 1999, S1's failure to respond to complainant's request for a
job recommendation in a timely manner resulted in her not being selected
for the position;
on August 24, 1999, complainant received written notification that
her term appointment would terminate on September 11, 1999, which
was followed by the issuance of an SF-50 that indicated �resignation�
instead of �termination;� and
on August 30, 1999, S1 filled complainant's incoming mail box with
back-dated correspondence, making it appear that she was not doing
her job.<1>
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.
The AJ concluded that complainant failed to establish a claim of
harassment. The AJ noted that complainant established that she belongs to
statutorily protected groups because of her race and prior EEO activity.
The AJ concluded, however, that complainant failed to establish that
the complained of actions by the agency were sufficiently severe or
pervasive to alter the conditions of her employment to create an abusive
or hostile environment. In so finding, the AJ noted that the evidence of
record failed to support the allegations of harassment raised. The AJ
also found that there was no evidence of record to suggest that these
actions were the result of animus towards complainant's race or prior
EEO activity. The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order. 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 referenced the appropriate regulations, policies,
and laws. We discern no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, including all contentions made
on appeal and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
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
June 25, 2003
__________________
Date
1 Complainant's reprisal claim involves only incidents (11) and (12),
which occurred after she contacted an EEO counselor in regard to the
other incidents.