01A30742_r
03-19-2003
Cynthia R. Butler, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Cynthia R. Butler v. Department of Veterans Affairs
01A30742
March 19, 2003
.
Cynthia R. Butler,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A30742
Agency No. 200K-1801
DECISION
Complainant appeals to the Commission from the agency's August 23, 2002
decision finding no discrimination. According to the agency's decision,
complainant alleges discrimination on the bases of race (African-American)
and reprisal for prior EEO activity (June 6, 2001), when effective June
22, 2001, she was terminated from her GS-601-9 Supervisory Registered
Respiratory Therapist, Temporary, Excepted Appointment position.
The agency, in its decision concluded that it asserted a legitimate,
nondiscriminatory reason for its actions, which complainant failed
to rebut.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for the termination. The Chief of Anesthesia Service (Chief) said
that complainant was terminated because she did not follow procedures
and due to her conduct. Specifically, the Chief stated that complainant
was hired as a supervisory therapist. The Chief mentioned that, during
the time complainant was employed at the facility, she was informed of
the proper procedures for doing things, but she would not follow proper
procedures. The Chief indicated that he informed complainant that she
could reach him anytime and to page him if she had any questions. He said
that complainant would always e-mail him and he reported that he could not
respond to e-mail as quickly as being paged. He commented that he told
complainant repeatedly to page him, but she would not listen. He stated
that his section was looking for a new blood gas analyzer machine and
he told complainant to call vendors to use different machines in the
lab before a decision was made. He indicated that complainant wanted a
specific machine because she used it before and never attempted to look
at other machines. He reported that complainant wanted to be in charge
and wanted to control everything that went on in the respiratory section.
He said that he informed complainant after the first month that her job
was probationary and if she did not do her job she could be terminated.
He mentioned that, when complainant was informed that she would be
terminated, she told him that she would do �everything in her means
to see that this was not going to happen.� He stated that complainant
said words to the effect that he would regret this. He reported that
complainant would come in on different shifts, which were not approved.
Complainant has failed to show that the agency's reasons are pretext
for discrimination. Complainant has not rebutted the agency's argument
that its actions were without discriminatory motive. We find that
complainant has failed to show, by a preponderance of the evidence,
that she was discriminated against on the bases of race or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 19, 2003
__________________
Date