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.