_______________________________ Linda R. Carlson, Appellant,v.Togo D. West, Secretary, Department of Veterans Affairs,) Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01970599 (E.E.O.C. Jan. 15, 1999)

01970599

01-15-1999

_______________________________ Linda R. Carlson, Appellant, v. Togo D. West, Secretary, Department of Veterans Affairs,) Agency.


Linda R. Carlson v. Department of Veterans Affairs

01970599

January 15, 1999

_______________________________

Linda R. Carlson, )

Appellant, )

)

v. )

) Appeal No. 01970599

Togo D. West, ) Agency Nos. 94-1545

Secretary, ) 95-1585

Department of Veterans Affairs,)

Agency. )

_______________________________)

DECISION

Appellant filed a timely appeal with this Commission on October 29,

1996 from a final agency decision ("FAD") dated September 26, 1996,

concerning her complaints alleging employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. In her complaints, appellant alleged that

her supervisor discriminated against her on the basis of sex (female)

and/or reprisal (prior EEO activity) when he repeatedly harassed her and

issued her nine disciplinary actions in January of 1995. This appeal

is accepted in accordance with the provisions of EEOC Order No. 960.001.

Appellant began her employment with the agency in 1979. In 1987,

she accepted a position as a readjustment counseling assistant at the

Veterans Affairs Medical and Regional Office Center ("Center") in Fargo,

North Dakota. Beginning in 1990, appellant came under the supervision of

a new team leader ("TL") (male). From 1990 to 1994, appellant received

satisfactory performance appraisals from the TL. However, the TL stated

that, from the point he began supervising appellant, he had problems with

her performance. He stated that he did not immediately begin to document

the problems because he hoped that appellant's performance would improve.

In 1993, the working relationship between TL and appellant began to

worsen. Early in the year, the TL took appellant's office key and

instructed her not to be in the Center after normal business hours.

The TL stated that he was concerned about possible safety issues

with appellant, a female, being alone in the Center after hours.<1>

On September 1, 1993, the TL issued appellant a letter of counseling

addressing two prior incidents when appellant was in the Center after

business hours.

In August of 1993, after receiving complaints from the work study

students, the TL removed the students from appellant's supervision.

The students contended that appellant unnecessarily harassed and

intimidated them.

Appellant stated that, on November 23, 1993, the TL brought a cartoon

to the office that essentially expressed that a bad day in the office

was better than a day in the employment line. Appellant felt that the

cartoon was aimed at her. She also stated that the TL asked her why

was she still working at the Center when it was apparent that she had

not enjoyed her job during the past three years. Believing that she was

being subjected to harassment, appellant contacted an EEO counselor on

December 9, 1993 and filed a formal complaint of sex discrimination on

January 17, 1994.<2>

On August 17, 1994, after consultation with appellant's union, the TL

provided appellant a list of work prohibitions which informed her not to

contact a contractor who had expressed concerns with appellant and of the

proper protocol with respect to her work hours, the work study students

and the chain of authority when the TL was absent from the workplace.

From 1988 to 1994, appellant along with a volunteer counselor conducted

a women's counseling group on Thursday evenings. On September 15, 1994,

the TL removed appellant from the counseling group. He stated that he

received the order to remove appellant from the counseling group from

his superiors in the regional office. The evidence also indicated that

the TL had some involvement with the removal of appellant from the group

and the eventual cancellation of the women's group.<3>

The record also revealed that, during the latter part of 1994, appellant's

union and agency officials were working toward a resolution of the

problems at the Center. Appellant's union initiated an investigation

which concluded that most of the problems at the Center resulted because

appellant was not doing her job. In an attempt to address the situation,

the agency hired a psychologist to assess the working relationships

between the Center's employees and to provide suggestions on how to

improve the working environment. After interviewing the Center's

employees, the psychologist provided the agency with a report dated

January 17, 1995, concluding that conflictual problems with appellant were

the only major issues at the Center. The psychologist basically suggested

that either appellant make changes in her work performance and conduct, or

the agency should find appellant a position elsewhere within the agency.

In January of 1995, the TL issued the following disciplinary actions to

appellant:

(1) January 10, 1995, a letter of admonishment for insubordination for

failing to fax a memo to the regional office, complete budget projections,

and promptly type an Open House letter;

(2) January 10, 1995, a written documentation of verbal counseling

given to appellant on December 20, 1994 regarding a missing client file,

inaccurate Service Activity Reporting System report, and unauthorized

leave;

(3) January 10, 1995, a letter of reprimand for insubordination concerning

continued contact with a contractor contrary to previous instructions,

and repeated disregard of the TL's instruction that appellant not be in

the Center after business hours;

(4) January 18, 1995, a letter of admonishment for failing to survey

and dispose of certain boxes, and problems with correspondence sent to

the regional office;

(5) January 18, 1995, a letter of admonishment for failing to record

staff meeting minutes;

(6) January 19, 1995, a written notice of verbal counseling administered

on January 3, 1995 for failing to record staff meeting minutes;

(7) January 19, 1995, a written notice of verbal counseling administered

on January 10, 1995 for inappropriate conduct toward a client;

(8) January 19, 1995, a written notice of verbal counseling administered

on January 19, 1995 for mishandling the ordering of appointment cards;

(9) January 24, 1995, a notice of proposed suspension for insubordination

concerning several of the above-mentioned actions.<4>

After receiving the disciplinary actions, appellant contacted an EEO

counselor on January 4 and 10 of 1995, and filed a formal complaint

of reprisal discrimination on April 14, 1995. Following the agency's

investigation of the complaints, appellant requested a hearing before an

Administrative Judge ("AJ"). After conducting a hearing and reviewing

the evidence of record, the AJ issued a recommended decision ("RD")

dated September 4, 1996, finding no discrimination. Specifically, the AJ

found that appellant established prima facie cases of sex and reprisal

discrimination. The AJ then found that the agency had articulated

legitimate nondiscriminatory reasons for disciplining appellant.

In his pretext analysis, the AJ found that the evidence showed that

the TL and appellant had an acrimonious relationship and that the TL

is a very intense individual and often lacks tact in his statements.

However, the AJ found that this evidence did not show that the TL

discriminated against appellant based on sex or reprisal. The AJ

concluded that the evidence showed that the TL's disciplinary actions

resulted because appellant failed to properly perform her job and that

there was insufficient evidence to show pretext. On September 26, 1996,

the agency issued its FAD adopting the AJ's recommended finding of no

discrimination. It is from this decision that appellant now appeals.

After a careful review of the record in its entirety, including the

statements submitted on appeal, the Commission finds that the AJ's

RD sets forth the relevant facts and properly analyzes the appropriate

regulations, policies and laws. Nothing proffered by appellant on appeal

differs significantly from the arguments presented at the hearing and

given full consideration by the AJ. Therefore, the Commission discerns

no basis upon which to overturn the AJ's finding of no discrimination

in this matter. In this regard, the AJ made specific credibility

findings which are entitled to deference due to the AJ's first-hand

knowledge, through personal observation, of the demeanor and conduct

of the witnesses. See Esquer v. United States Postal Service, EEOC

Request No. 05960096 (September 6, 1996); Willis v. Department of the

Treasury, EEOC Request No. 05900589 (July 26, 1990). Accordingly, it

is the decision of the Equal Employment Opportunity Commission to AFFIRM

the agency's final decision which adopted the AJ's finding of no sex or

reprisal discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. � l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from

the date that you receive this decision. To ensure that your civil

action is considered timely, you are advised to file it WITHIN THIRTY

(30) CALENDAR DAYS from the date that you receive this decision or

to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the

administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Jan 15, 1999

__________________ _______________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 Other testimony suggest that the TL was also concerned with

appellant accumulating credit time after hours.

2 Other evidence revealed that, on many occasions, the TL and appellant

engaged in heated arguments concerning appellant's work performance.

During these arguments, the TL would use aggressive and gruff language

and behavior.

3 On numerous prior occasions, the TL stated that appellant was not

a counselor. He also appeared to have a problem with having women left

alone in the Center after normal business hours. He testified that there

were dangerous elements in the Center neighborhood during evening hours.

4 The TL stated that the reason he issued nine actions in such a

short span was because he was asked by appellant's union to delay any

disciplinary actions until the parties had attempted to work out a

compromise.