Andrea Mersiovsky, Appellant,v.Togo D. West, Secretary, Department of Veteran's Affairs, Agency.

Equal Employment Opportunity CommissionSep 20, 1999
01972738 (E.E.O.C. Sep. 20, 1999)

01972738

09-20-1999

Andrea Mersiovsky, Appellant, v. Togo D. West, Secretary, Department of Veteran's Affairs, Agency.


Andrea Mersiovsky, )

Appellant, )

) Appeal No. 01972738

v. ) Agency No. 96-0386

)

Togo D. West, )

Secretary, )

Department of Veteran's Affairs, )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

basis of reprisal (prior EEO activity), in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

Appellant alleges she was discriminated against when: (1) on or about

September 28, 1995, she became aware that management officials conspired

to deny her benefits under the Office of Worker's Compensation Program

(OWCP), when it claimed to have sent her a viable job offer; and (2) on

or about September 28, 1995, she became aware that management officials

withheld vital information regarding her rights under the OWCP.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

The record reveals that during the relevant time, appellant was employed

as an Electronic Technician at the Department of Veteran's Affairs

Medical Center, Temple, Texas. As background, appellant alleged that

beginning in 1985, she was sexually harassed by one of her co-worker's,

who later became her supervisor. She subsequently filed an EEO complaint

against the individual, but alleges the harassment did not stop when she

complained to management. Appellant stated that she suffered intense

stress and as a result, could not function. In response to appellant's

concerns, the agency launched an internal investigation, which found

that although there had been no witnesses to appellant's allegations of

physical touching by the co-worker, there had been corroboration of his

name calling and hostility towards appellant. As a result, the agency

ordered sensitivity training, and the reassignment of appellant, which

was at her request. Although appellant was placed under the supervision

of another individual, she was still under stress due to her belief that

she was being retaliated against for her EEO activity when her workload

intensified. During this period, appellant filed several EEO complaints.

As a result of the harassment, appellant filed an OWCP claim,

charging that she had suffered work related stress. Appellant's health

deteriorated during the summer of 1993, and she was placed on extended

sick leave while she sought psychiatric day treatment at a hospital.

The record reveals that appellant withdrew her EEO complaints on

August 23, 1993. Moreover, appellant resigned from agency employ in

August 1993.<1> In September 1993, the Department of Labor (DOL)

notified appellant that her OWCP claim had been denied due to an

inability to establish that an injury had been sustained as alleged.

Appellant filed for reconsideration of her OWCP claim in November 1995,

which was later denied.

Two years later, in October 1995, appellant reviewed her OWCP file and

discovered that the agency had sent her a job offer for a position at

the agency's Information Resource Management (IRM) office back in June

of 1993. However, as it was mailed to her prior address, appellant

maintained that she never received it. The OWCP file also revealed

that the job offer had been approved by appellant's then physician.

Also contained in the OWCP file was a reference to a �record of contact�

that the agency's OWCP Specialist had allegedly had with appellant in

June 1993. Specifically, the �record of contact� reported that on June

21, 1993, appellant spoke with the Specialist and declined the job offer.

Appellant testified that she had no recollection of speaking with the

Specialist on that date, and testified that she had not received the job

offer because it had been sent to the wrong address. She testified

further that around the time the job offer had allegedly been sent,

she changed doctors, which is why her physician never notified her of

the job offer.

Appellant's complaint and testimony surround her allegations that

management officials conspired to deny her OWCP benefits by purposefully

mailing the job offer to her old address, and denied her appeal rights for

her OWCP claim, in reprisal for her prior EEO activity. Believing she

was a victim of discrimination, appellant sought EEO counseling and,

subsequently, filed a complaint on November 14, 1995. At the conclusion

of the investigation, appellant failed to request a hearing. On January

28, 1997, the agency issued a final decision finding no discrimination.

The FAD concluded that appellant established a prima facie case of

reprisal discrimination when she demonstrated that management officials

were aware of her prior EEO activity when it allegedly sent the job

offer the wrong address, and allegedly denied her the appropriate OWCP

appeal rights. The agency found that the adverse actions occurred in

close proximity to her EEO activity, such that a causal connection could

be presumed.

The FAD also found that the agency had articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, the Chief

of Human Resources Management Services (Chief) testified that a job

offer at the agency's IRM office was offered to appellant in an effort

to lessen the agency's potential long term OWCP costs, and to provide a

working environment in which appellant could perform.<2> With respect to

appellant's second allegation, the Chief testified that he believed that

appellant had been supplied the OWCP rights, and supplied documentation

in support thereof.

The OWCP Specialist testified that he mistakenly sent appellant's job

offer to her prior address. He maintained that appellant had received

the job offer because he spoke with her on June 21, 1993, when she

declined the position. He testified that the job offer had not been

sent certified mail, and therefore there was no way to document whether

appellant had in fact received the letter. However, he also testified

that the Post Office usually returns mail which is undeliverable, and

that he therefore believes that the Post Office, or the recipient of

appellant's letter forwarded the mail to appellant.

The OWCP Specialist testified that although he reported to the DOL

that appellant had declined the job offer, her failure to accept the

job offer did not affect her claim. Instead, appellant's OWCP claim

was denied due to insufficient medical evidence contained in the file.

According to the OWCP Specialist, the DOL must determine whether the

claim is compensable before it determines whether the job offer is viable

or not. With respect to appellant's second allegation, he testified

that appellant had been sent the appropriate OWCP appeal rights.

A co-worker of appellant's testified that the agency has also sent him

OWCP information to an incorrect address in the past. He testified that

he does not believe a job offer was ever made to appellant. Instead,

he believed the OWCP Specialist �made up� the job offer when he later

realized that appellant had a compensable stress-related illness, since

he (the Specialist) is required to show OWCP that he made a job offer

for appellant, and that she refused it.

On appeal, appellant contends that the agency conducted an inadequate

investigation. She maintained that she never received the job offer,

and never declined the position during a conversation with the OWCP

Specialist on June 21, 1993. She testified that she had not lived at

the address the job offer had been sent for the prior two years, and that

she had received other documents from the agency at her correct address.

She maintains that she would have accepted the offer, as she wished to

change offices.

After a careful review of the record, based on McDonnell Douglas v. Green,

411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the

Commission agrees with the agency that appellant failed to establish

that the agency's reason for its actions are pretext for discrimination.

We note that appellant has failed to prove that the agency intentionally

misdirected the job offer in an effort to deny her OWCP benefits in

reprisal for her prior EEO activity. We note that the record reveals

that appellant was denied OWCP benefits for failing to submit adequate

medical documentation. Furthermore, appellant has failed to persuade

us that the Chief or the OWCP Specialist were motivated by a desire

to retaliate against appellant for engaging in prior EEO activity.

Specifically, appellant has not shown that either individual was involved

in appellant's prior EEO activity, or would have had an interest in

its outcome. Appellant herself conceded in her affidavit that the

misdirection of her job offer may have only been a mistake.

Therefore, after a careful review of the record, including appellant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, 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:

9-20-99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1Appellant filed an

appeal with the Merit Systems Protection Board

regarding her allegation of constructive discharge.

2The EEO Investigator explained that in an effort to reduce OWCP

liabilities, agency's often offer OWCP claimants light duty, reduced

workload, or reassignments, depending on the nature of their illness.