01-2007-0293_Clancy
08-01-2008
Patricia M. Clancy, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Patricia M. Clancy,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070293
Agency No. 200305492004103787
Hearing No. 310-2005-00524X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 11, 2006 final order 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. Complainant alleged that the agency discriminated against
her on the bases of race (Caucasian), disability (Paget's Disease), and
in reprisal for prior protected EEO when on August 4, 2004, the agency
terminated her from her position as a Medical Support clerk.
The EEOC Administrative Judge (AJ) concluded that the agency articulated
legitimate, non-discriminatory reasons for its decision to terminate
complainant and that complainant failed to establish that such reasons
were pretext for discriminatory or retaliatory animus. The record
indicates that complainant was counseled for her sick leave usage in
February 2003. On August 12, 2003, complainant was placed on sick
leave certification for six months. In February 2004, the sick leave
certification period was extended. On March 16, 2004, complainant
was issued a proosed removal for being AWOL. In lieu of termination,
complainant and the agency entered into a Last Chance Agreement
(LCA). Subsequent to the LCA, complainant was found to be tardy
nine times. Consequently, the responsible management official (RMO)
removed complainant due to the violation of the LCA. The AJ found the
preponderance of the record established that complainant was terminated
because the RMO viewed complainant as having continual problems with
leave usage and attendance over several years. Ultimately, the AJ
concluded that the preponderance of the evidence did not establish
that the agency's reason for removing complainant was pretext for
discrimination or retaliation.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal1, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 1, 2008
__________________
Date
1 We note that complainant does not dispute the AJ's findings with
respect to claims of race and disability discrimination.
2 Contrary to complainant's assertions, while the evidence may support
a prima facie of reprisal, the AJ's conclusion that the record does not
support the finding of pretext or retaliatory animus is supported by
substantial evidence.
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0120070293
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036