01994243
03-20-2000
Bertha L. Keen, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Bertha L. Keen, )
Complainant, )
)
v. ) Appeal No. 01994243
) Agency No. 97-2172
Togo D. West, Jr., ) Hearing No. 120-98-9133X
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
On April 30, 1999 complainant filed a timely appeal with the Commission
from a final agency decision (FAD) pertaining to her complaint of
unlawful employment discrimination 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 Commission accepts the appeal in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).<1>
The record reveals that during the relevant time, complainant was employed
as a Payroll Technician, GS-6 in Fiscal Services at the agency's Maryland
Health Care System (VAMHCS) facility. Complainant contacted the EEO
office claiming she suffered discrimination when her position of Civilian
Pay Technician was not classified at the GS-7 level. Informal efforts to
resolve her concerns were unsuccessful. Subsequently, complainant filed
a formal complaint, dated August 2, 1996. Following an investigation,
complainant requested a hearing before an Administrative Judge (AJ).
Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.109(g)), the AJ issued a Recommended Decision without a
hearing, finding no discrimination.
The AJ made the following findings. Prior to March 1996, complainant
worked for the Perry Point VAMC, which then merged with two other VAMCs
to form the VAMHCS. Before the merger, each VAMC had its own position
descriptions and classifications. A payroll technician (Black, under
the age of 40) at one of the other facilities, with duties similar to
complainant's duties, was a GS-7. During 1995 and 1996, complainant's
managers tried unsuccessfully to have her position reclassified to GS-7.
In 1997, after the merger, the classifications for all three offices
became the responsibility of the new VAMHCS Chief of Human Resources.
Complainant's position remained at the GS-6 level, while the other payroll
technician remained at GS-7.<2> The AJ noted that although complainant
was informed of her classification appeal rights, she did not seek an
appeal with the Central Office or the Office of Personnel Management.
Therefore, the AJ concluded that complainant failed to state a claim
because she did not exhaust the administrative remedies available with
regard to classification appeals.
Moreover, the AJ found that even assuming that complainant stated a
claim, complainant failed to establish a prima facie case of age and
racial discrimination because the GS-7 technician was not �similarly
situated.� Specifically, the AJ determined that agency officials
responsible for deciding that complainant's position did not warrant a
GS-7 were not involved with the decision to classify the other technician
at GS-7. Moreover, the AJ concluded that there was �absolutely no
inference of race or age discrimination.� According to the AJ, the
record indicated numerous efforts by complainant's managers to obtain
the GS-7 classification for her position.
The agency issued a FAD, dated March 29, 1999, adopting the AJ's
recommended decision.
On appeal, complainant contends that the agency should have focused on
the events that occurred after the merger of the various VAMCs, rather
than prior to that time. Complainant argues that since the GS-7 position
and her GS-6 position had the same description and were under the same
supervision, they should be at the same classification. Additionally,
she argues that more attention should have been given to the Chief of
Accounting's testimony that the GS-7 technician was able to retain her
grade because she was black and younger.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Regarding the AJ's analysis of the merits of the complaint, the Commission
finds that the AJ's
recommended decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We conclude that complainant
failed to present sufficient evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's race or age.
Therefore, we discern no basis to disturb the AJ's recommended finding
of no discrimination.
Accordingly, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
March 20, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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.
2In August 1997, complainant applied and was selected for a newly
created Lead Payroll Technician, GS-7 position at the agency's Perry
Point office.l