0120065118
05-20-2008
Gwendolyn E. Evans, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Gwendolyn E. Evans,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200651181
Agency No. 200L-2004-2004100901
Hearing No. 140-2005-00155X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 14, 2006 final decision 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. Complainant,
an EEO Counselor, alleged that the agency discriminated against her on
the bases of race (African-American) and reprisal for prior protected
EEO activity when:
1. On March 22, 2004, complainant's request to attend Investigator
Training was denied;
2. She was non-selected for the following positions:
(a) November 12, 2003 - EEO Specialist GS-12;
(b) July 22, 2004 - EEO Investigator Bay Pines, Florida;
(c) October 7, 2004 - Investigator/Intake Specialist
(C-2) position (She was not afforded
the opportunity to apply for this position);
3. On August 25, 2004, complainant was issued a performance warning;
4. On August 25, 2004, complainant was issued a letter of
counseling;
5. On August 25, 2004, complainant requested to work an alternative
work schedule, but her request for a change of tour of duty was denied;
and
6. Complainant was not promoted when she learned others in the
Washington ORM Field Officer were promoted.
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ assigned to the case
determined that there were no issues of material facts in dispute
and issued a decision without a hearing finding no discrimination.
Specifically, the AJ found that with respect to issue (1), none of the
EEO Counselors, including complainant were allowed to go to Investigator
Training due to lack of funding for training. The agency also indicated
that complainant had a delinquent balance on her government credit card so
training would not have been approved under such circumstances. Regarding
issue (2), the AJ determined that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, complainant was not
the best qualified candidate for two of the positions in question and
the third position was filled through non-competitive reassignment from
another Field Office.
With respect to issues 3-5, the AJ again found that the agency had
articulated legitimate, nondiscriminatory reasons for its actions, namely,
corrective action was initiated against complainant because she was behind
in her work assignments and because she was 30-45 days delinquent on her
government credit card. Further, with respect to issue 6, the agency
indicated that, contrary to complainant's allegation that others were
being promoted when she was not, the reality was that only one employee
was promoted during the time in question. Finally, the AJ determined
that complainant failed to establish a prima facie case of reprisal
because her prior EEO activity occurred in 1991, which was several
years prior to the instant complaint. The AJ indicated that, even if
complainant had established a prima facie case, she failed to establish
that management officials were motivated by retaliatory animus.
Thereafter, the agency fully implemented the AJ's finding of no
discrimination. It is from that decision that complainant files the
present appeal in which she contends that she was subjected to a hostile
work environment.
The Commission's regulations allow an EEOC Administrative Judge (AJ)
to issue a decision without a hearing when s/he finds that there
are no genuine issues of material fact in dispute as to whether the
agency discriminated against complainant. 29 C.F.R. � 1614.109(g).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
We find that that agency articulated legitimate, nondiscriminatory reasons
for its actions while complainant failed to show that the reasons stated
were pretext for discrimination. Moreover, we find that the record
does not support an inference that the conduct alleged constituted a
hostile work environment. We find the incidents included as part of
the complaint were work management related issues and were not hostile
or pervasive enough to constitute a claim of hostile work environment.
Further, we find that no material facts are at issue in this case, and
therefore the summary judgment decision was properly issued. Accordingly,
the agency's order is hereby affirmed.
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
______05-20-08____________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120065118
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065118