Carol Bradford, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 6, 2000
01983308 (E.E.O.C. May. 6, 2000)

01983308

05-06-2000

Carol Bradford, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Carol Bradford v. Department of Veterans Affairs

01983308

May 6, 2000

Carol Bradford, )

Complainant, )

)

v. ) Appeal No. 01983308

) Agency No. 94-1576

Togo D. West, Jr., ) Hearing No. 270-94-9179X

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

INTRODUCTION

Complainant filed a timely appeal with the Commission from a final agency

decision (FAD) pertaining to her equal employment opportunity (EEO)

complaint of unlawful employment discrimination on the bases of race

(white) and reprisal, in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges

she was discriminated against when she was issued a letter of counseling

dated March 21, 1994 and a letter of suspension dated April 11, 1994.

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). For the following reasons, the

Commission affirms the FAD.

ISSUE PRESENTED

The issue presented herein is whether complainant has established, by

a preponderance of the evidence, that the agency discriminated against

her on the bases of race and reprisal.

BACKGROUND

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

as a senior nuclear medicine technologist in the Imaging Section of the

VAMC's Nuclear Medicine Service, in New Orleans, Louisiana. Believing she

was victim of discrimination, complainant sought EEO counseling and,

subsequently filed formal complaint on June 1, 1994.

Following an investigation, complainant requested a hearing before an

EEOC Administrative Judge (AJ). A hearing was held on June 26, 1997,

and thereafter, on October 31, 1997, the AJ issued a Bench Decision

finding no discrimination. The AJ concluded that complainant failed

to establish a prima facie case of racial discrimination because the

comparative employee she cited was not engaged in the same conduct as

she was, that is, similarly situated. According to the AJ, complainant

also failed to make a prima facie case of reprisal discrimination.

Although complaint did demonstrate prior EEO activity, she did not

establish any causal connection between her protected group status and the

employment actions at issue. Specifically, the AJ noted that complainant

received counseling and other discipline before, as well as after, she

engaged in EEO activity. Further, the AJ concluded that the agency had

presented legitimate, non-discriminatory reasons for its actions, namely

complainant's conduct. The AJ noted, for example, that complainant had

been asked several times not to interfere with a particular co-worker and

was loud and rude to her superiors. In an effort to establish pretext,

complainant argued that the Chief of the Nuclear Medicine Service gave

black employees more favorable treatment. The AJ, however, did not find

that complainant's argument was supported by the record. Accordingly,

the AJ recommended a finding of no discrimination.

On February 18, 1998, the agency issued a FAD adopting the AJ's Bench

Decision, and found no discrimination.

On appeal, complainant contends that the AJ erred when she relied on

the testimony of agency officials. Specifically, complainant argues

that the Chief had a history of time fraud, and therefore was not a

credible witness.

ANALYSIS AND FINDINGS

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).

After a careful review of the record, 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 establish by a preponderance of the evidence that

any of the agency's actions were in retaliation for complainant's prior

EEO activity or were motivated by discriminatory animus toward

complainant's race. We discern no basis to disturb the AJ's recommended

decision.

CONCLUSION

Therefore, 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 (M1199)

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). 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:

May 6, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

1 On 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.