01972714
09-14-1999
Alma B. Hinton, Appellant, v. Togo D. West Jr., Secretary, Department of Veterans Affairs,) Agency.
Alma B. Hinton, )
Appellant, )
) Appeal No. 01972714
v. ) Agency Nos. 95-1178, 1179, 1482
) 1865, 96-0002, 0687
) Hearing Nos.110-96-8165X, 8166X
Togo D. West Jr., ) 8167X, 8168X, 8169X,
Secretary, ) 8271X
Department of Veterans Affairs,)
Agency. )
)
)
DECISION
INTRODUCTION
Appellant 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 reprisal (prior EEO activity),
and age (55), 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.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issues on appeal were defined by the AJ as follows:
Whether appellant was a victim of discrimination on the bases of reprisal
and in some incidents (as specifically noted below) on the basis of
age when:
(1) she received a memorandum concerning her blood collection on or
about January 20, 1995;
(2) she received an interim performance appraisal on February 2, 1995;
(3) her second line supervisor (S2) spoke to her in an aggressive manner;
(4) the agency charged appellant with being absent without leave (AWOL)
on February 16 and 17, 1995;
(5) appellant was issued a proposed 14-day suspension on March 10, 1995;
(6) appellant was given less duty hours than other part-time employees
and was not trained for advancement;
(7) appellant was issued a counseling letter concerning her sick leave
usage on July 31, 1995;
(8) appellant was reassigned to the agency's Uptown facility during or
about November 1995; and
(9) appellant alleges that she was subjected to a hostile work environment
on almost a daily basis to include the following dates: May 10, 16-19,
and June 1, and 7, 1995; October 3, 1994, until July 6, 1995, September 8,
1995, until December 6, 1995. Appellant also alleged age discrimination
as a basis regarding this claim.
BACK GROUND
During the time her complaints arose, appellant was a veteran with
over twenty years employment with the federal government. She held
a part-time, GS-4 position as a phlebotomist.<1> Appellant filed six
separate complaints alleging discrimination as set forth above under
�Issues Presented.� All six complaints were consolidated. At the
conclusion of the investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
A hearing was held on July 10, October 30, 31, and November 1, 1996.
On January 7, 1997, the AJ issued a recommended bench decision finding
no discrimination. Subsequently, on January 31, 1997, the agency issued
a FAD concurring with the AJ and adopting the recommended decision as
its own.
In his RD, the AJ found that appellant established a prima facie case
of reprisal discrimination but failed to establish an inference of age
discrimination. The AJ further found that the agency rebutted appellant's
prima facie case of discrimination. Specifically, regarding the January
20, 1995, memorandum, appellant's supervisor explained that usually she
would verbally counsel a phlebotomist but because of appellant's history
of disruption, when the supervisor attempted to counsel appellant,
she believed it was necessary to issue a written memorandum instead.
Regarding the appraisal, the AJ noted that the appraisal was fully
successful and that the preponderance of the testimony concerning this
incident was that appellant created a commotion. Furthermore, the Chief
denied appellant's assault allegations and explained that he came near
appellant in order to retrieve her appraisal. All agency officials and
co-workers denied harassing appellant. Moreover, the AJ concluded that
other than appellant's testimony there was no evidence indicating that
a hostile work environment or ongoing harassment took place as alleged
by appellant.
Regarding appellant's AWOL charge, agency officials explained that it
was the agency's policy to charge employees AWOL when they were in jail.
The AJ also noted contrary to appellant's contentions, that the record
showed that appellant received training. Also, agency officials testified
that appellant received the March 10, 1995 proposed suspension because
of her misconduct during the issuance of her performance appraisal on
February 2, 1995. According to the record, appellant was issued her
performance appraisal on February 2, 1995. Subsequently, appellant's
discussion with her supervisor regarding appellant's appraisal resulted
into a verbal altercation. Thereafter, appellant refused to return her
appraisal (signed) to her supervisor.
Regarding appellant's sick leave certification, agency officials testified
that appellant was abusing her sick leave by being sick near holidays and
weekend periods. The AJ noted that appellant's own testimony corroborated
the agency's representation of her sick leave usage.
According to the record, appellant was reassigned because the Resident
Support Team took over phlebotomist duties in the morning. Moreover,
the reassignment proved beneficial to appellant because it reduced or
eliminated her having to work a split shift. Finally, agency officials
testified that appellant was allowed to work as much overtime as other
employees and that a list or note was placed in a conspicuous place when
an absence made overtime available.
The AJ noted that appellant appeared to have a problem not only in
mis-perceiving testimony but also with understanding the EEO process.
The AJ concluded that appellant's behavior justified the agency's
discipline. He further noted that there were no inconsistencies or
contradictions apparent with respect to the testimony provided by agency
officials. Therefore, the AJ concluded that appellant did not prove,
by a preponderance of the evidence, that she was discriminated against
as alleged.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We find, as did the AJ, that the
agency rebutted any prima facie case appellant may have established
by articulating a legitimate, nondiscriminatory reason for all of
its actions. We further agree, that appellant failed to show that the
explanations provided regarding her discipline was pretext for unlawful
discrimination. Moreover, we note that the gist of appellant's complaint
is that she was subjected to a hostile work environment. It appears that
the incidents set forth in her complaint were examples of the ongoing
harassment that appellant alleges she suffered from agency officials
and co-workers. We find as did the AJ that the record does not support
appellant's contentions. While it is clear that appellant�s relationship
with her co-workers and supervisors was tainted with problems, the record
does not support a finding that appellant was subjected to adverse acts
that were severe or pervasive enough as to constitute a hostile work
environment. Moreover, the evidence supports the agency's contentions
that appellant's behavior was the reason she received memoranda from
her supervisor. Also, appellant received a suspension and restrictions
on her sick leave usage because her behavior also warranted this form
of discipline. We find that appellant's voluminous statement on appeal
offered no new or persuasive evidence in support of her contentions.
Therefore, we discern no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record.
Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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 (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:
9/14/99
DATE Carlton Hadden, Acting Director
Office of Federal Operations1 Phlebotomists draw
blood from individuals.