01a34501
11-24-2004
Henrietta Artis, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Henrietta Artis v. Department of Veterans Affairs
01A34501
November 24, 2004
.
Henrietta Artis,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A34501
Agency No. 200R-0542-2002101659
Hearing No. 170-A2-8486X
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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 Medical Clerk GS-5 at the agency's
Medical Center in Coatesville, Pennsylvania, filed a formal EEO complaint
on March 15, 2002. She alleged that the agency had discriminated against
her on the bases of her race (African-American) and her age (D.O.B. March
16, 1956) when:
(1) she was reassigned to the Ward Administration unit on January
30, 2002;
she was issued an admonishment for failure to follow procedures for
requesting leave; and
she was placed on a performance improvement plan on January 3, 2002.
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 prima facie
case of race or age discrimination because she failed to show that
similarly situated employees, not in complainant's protected class,
were treated differently. In addition, the AJ found that complainant
failed to rebut the agency's contention that she had performance
problems which resulted in her being reassigned to another position.
Although complainant claimed that the reason for her poor performance was
that she was not properly trained to perform certain aspects of her job,
the AJ concluded that complainant received continuous on-the-job training.
Even so, the AJ found that complainant's performance problems persisted.
Specifically, the agency presented evidence that complainant failed to
properly maintain �control points� regarding accounts assigned to her,
such that management could not rely on the information in her reports.
Additionally, complaints had been received that payments to vendors on
complainant's accounts were late.
The AJ credited the agency's managers testimony that they placed
complainant on a performance improvement plan (PIP) after two audits of
her accounts revealed unsatisfactory performance. She found no evidence
of discriminatory animus. Although complainant questioned the agency's
motives based on the early termination of the PIP, the AJ found that
there was no need for continuation of the PIP because complainant was
reassigned to another position.
With respect to the letter of admonishment, the AJ found that no other
similarly situated employee had been treated more favorably under
similar circumstances. In particular, there was no evidence that any
other employees had not been disciplined after leaving work without prior
approval. Thus, the AJ concluded that complainant failed to prove that
her race or her age were factors motivating the issuance of the written
reprimand. According to the testimony of complainant's supervisor,
complainant left the office without informing her or another supervisor.
Complainant did not credibly refute that the written medical excuse she
left under her supervisor's door, did not give her permission to leave
work early. For these reasons, the AJ found that complainant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination. 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.
ANALYSIS AND FINDINGS
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.
Complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's race or age.
Therefore, we find no basis to disturb the AJ's decision and 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
November 24, 2004
__________________
Date