01a00455
02-07-2000
Margaret S. Sheffield, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Margaret S. Sheffield, )
Complainant, )
)
v. ) Appeal No. 01A00455
) Agency No. 99-3355
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a
final decision, dated August 17, 1999 and received by the complainant
on September 30, 1999, which the agency issued pursuant to 29
C.F.R. �1614.110.<1> The Commission accepts the complainant's appeal
in accordance with EEOC Order No. 960, as amended.
After obtaining counseling, the complainant filed a formal complaint,
dated January 14, 1994, wherein alleged discrimination regarding numerous
non-selections. During a December 8, 1998 hearing on the complaint, the
Administrative Judge determined that the complainant also alleged that the
agency issued her a reprimand in retaliation for her and her daughter's
EEO activity. The Administrative Judge remanded the retaliation claim to
the agency for investigation. The agency gave the claim a new agency
case number and investigated the claim. After receiving a copy of
the investigative file and notice of her right to request a hearing,
the complainant requested a final agency decision without a hearing.
The agency issued a final decision wherein it found that the complainant
failed to prove discrimination based on disability because there
was no evidence in the record that the complainant had a disability.
The decision also found that, even assuming that the complainant had
established a prima facie case of discrimination based on race, color,
national origin, and age, he failed to prove that the agency's articulated
reasons for its actions were a pretext for discrimination.
On appeal, the complainant maintains that because the letter of counseling
was placed in her Official Personnel File (OPF), it was a reprimand.
The complainant also contends that even if it was not a reprimand, for
purposes of retaliation informal discipline should be considered to be
an adverse employment action. The complainant does not describe how
she proved that the agency's stated reasons for issuing the counseling
letter were a pretext, i.e., a mask, for retaliation.
The record establishes that the complainant and her daughter were both
employed by the agency at a Medical Center in Little Rock, Arkansas. The
daughter filed a complaint wherein she alleged that a man who worked in
the Human Resources Management Service (HRMS) had sexually harassed her.
The daughter kept notes relating to the alleged sexual harassment in a
file folder which she maintained in a file cabinet in the EEO Office where
she worked. One day she found the file folder laying on a copy machine.
All of the papers had been removed from the file; some papers were still
on the copy machine and the rest were strewn about. According to the
daughter, her second level supervisor saw what had happened and reported
it to the HRMS Chief. The HRMS Chief said he would have the locks
changed.<2> The daughter was advised to keep the file folder at home.
The daughter, who was still very upset because some of the information in
the file folder was embarrassing, then called her mother, the complainant.
The complainant then contacted security and was advised to contact the
agency's Law Enforcement Training Center. The complainant went to the
Center and talked with the Director. According to the Director, the
complainant told him that she suspected that someone had gotten into
her personal file who was not supposed to have done so. She wanted
to know if fingerprints could be lifted off the paper. The Director
indicated that he didn't know for sure, but would think about it. The
Director represented that he later questioned what she was doing coming
to ask him to do an investigation for her that should have come through
the appropriate channels. (Affidavit at page 4). He then contacted
the Acting Chief of Police and the HRMS Chief and informed them of the
complainant's request. No investigation of the fingerprints ever took
place.
On September 15, 1993, the complainant's supervisor, the former Chief,
Social Work, issued the complainant a letter of counseling. The letter
indicated that the complainant had contacted the Law Enforcement
Training Center on August 6, 1993, and requested assistance in
obtaining fingerprints from a file folder. The letter indicated
that the complainant had left the impression that the request was in
conjunction with an official investigation. The letter opined that this
impression, and the fact that the complainant had requested assistance in
a personal matter, was, at the least, improper. The letter counseled the
complainant for her actions and warned her that any further incidents
of such inappropriate conduct could result in disciplinary action.
According to the complainant, her supervisor told her he was issuing the
letter of counseling because the HRMS Chief and the Director of the Law
Enforcement Training Center instructed him to do so.
It is undisputed that the complainant established a prima facie case
of retaliation which the agency rebutted by articulating legitimate,
non-discriminatory reasons for issuing the letter of counseling.
This case turns, therefore, on the question of whether the complainant
proved that, more likely than not, the agency issued her the counseling
letter in retaliation for her and her daughter's EEO activity. After a
review of the entire record, the Commission finds that the complainant
failed to satisfy this burden of proof. The complainant points to
no evidence in the record from which the Commission can infer that
retaliation for EEO activity motivated the issuance of the counseling
letter, when, admittedly, the complainant sought help directly from the
Law Enforcement Training Center instead of requesting an investigation
through the proper channels. In so finding, the Commission recognizes that
the preponderance of the record evidence indicates that the complainant
did not hold herself out to the Law Enforcement Training Center's Director
as an agency official involved in an investigation.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's finding
that the complainant failed to prove she was issued a letter of counseling
in retaliation for her prior EEO activity.
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 7, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________ ___________________________
DATE 1On 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.
2At the time of the incident, the EEO Office was part of HRMS. The agency
subsequently moved the EEO Office to the Director's Office.