01983226
02-29-2000
Joyce B. Sidbury, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Joyce B. Sidbury v. Department of Veterans Affairs
01983226
February 29, 2000
Joyce B. Sidbury, )
Complainant, )
)
v. )
) Appeal No. 01983226
Togo D. West, Jr., ) Agency No. 96-0442
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (African American),
reprisal (prior EEO activity), and age (50), in violation of Title VII of
the Civil Rights Act of 1964, 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.<1> Complainant alleges she was discriminated
against when: (1) on July 7, 1995, her supervisor issued her a memorandum
of counseling regarding reporting late for work on numerous occasions;
(2) on August 25, 1995, she received a memorandum of admonishment from
her supervisor; (3) on September 14, 1995, her supervisor issued her
a memorandum of counseling for failure to follow instructions; (4)
on October 13, 1995, she received a memorandum of reprimand from her
supervisor regarding reporting late for work on numerous occasions; (5)
on October 13, 1995, complainant received a memorandum from her supervisor
informing her that her compressed work schedule would be discontinued;
and (6) on October 27, 1995, complainant received a memorandum from her
supervisor informing her that her performance in the "Office Management"
critical element was less than Fully Successful. The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). For the following reasons, the Commission affirms
the FAD.
ISSUE PRESENTED
The issue presented herein is whether complainant has established, by
a preponderance of the evidence, that the agency discriminated against
her on the bases of race, reprisal, and age.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a secretary in the Office of Acquisition and Material Management
Service at the agency's Washington D.C. facility. Complainant alleges
that she was subject to several acts of employment discrimination,
regarding admonishments, duty hours, performance appraisals, time and
attendance, and reprimands. Believing she was a victim of discrimination,
complainant sought EEO counseling. Subsequently, on November 20, 1995,
she filed a formal complaint.
Following an investigation of the complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ). The AJ found that there
were no issues of material fact to be decided in this case and issued his
Findings and Conclusions based on the written record on December 18, 1997.
The AJ concluded that complainant failed to establish a prima facie
case of racial or age discrimination because she failed to demonstrate
that similarly situated non-African American and younger employees
were treated differently. Further, complainant did not show that she
had engaged in prior EEO activity, thereby failing to establish a prima
facie case of discrimination based on reprisal. The AJ concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the AJ determined that complainant exhibited performance
and conduct deficiencies; and that complainant did not establish that,
more likely than not, the agency's articulated reasons were pretext
for discrimination. Accordingly, the AJ concluded that the agency did
not discriminate against the complainant.
The agency issued a FAD concurring with the AJ's findings of fact and
conclusions of law.
On appeal, complainant does not raise any new contentions.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
recommended findings and conclusions properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We conclude that complainant failed to present evidence that any of the
agency's actions were in retaliation for complainant's prior EEO activity
or were motivated by discriminatory animus toward complainant's race
or age. Therefore, we discern no basis to disturb the AJ's recommended
findings and conclusions.
Accordingly, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.