01972328
01-29-1999
Ida M. Foster, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Ida M. Foster v. Department of Veterans Affairs
01972328
January 29, 1999
Ida M. Foster, )
Appellant, )
) Appeal No. 01972328
v. ) Agency No. 96-0882
) Hearing No. 370-96-X2695
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs,)
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), color (black),
sex (female), reprisal (prior EEO activity), and age (DOB March 17,
1945), 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.
Appellant alleges she was discriminated against when: (1) on December
4, 1995, she was issued a letter of reprimand (LETTER); and (2) that
the LETTER was issued in order to harass her. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that appellant, a GS-6 Voucher Examiner at the
agency's Fee Service Section, Medical Administration Services, Northern
California System of Clinics, filed a formal EEO complaint with the
agency on January 26, 1996, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ). Pursuant to 29 C.F.R. �
1614.109(e), the AJ issued a Recommended Decision (RD) without a hearing,
finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of discrimination because she was not satisfying the normal requirements
of the position due to her habitual tardiness, for which she received
the LETTER at issue. In reaching this conclusion, the AJ relied
on the statements of her supervisor, who issued the LETTER, and the
Assistant Chief of Medical Services, who concurred with her supervisor.
The AJ noted that appellant was issued the LETTER due to twenty-seven
instances of tardiness over the prior four months, and the LETTER
was a further attempt to improve appellant's attendance where prior
instances of verbal counseling for attendance had been unsuccessful.
The AJ also found that appellant failed to demonstrate that similarly
situated employees not in her protected classes were treated differently
under similar circumstances. In reaching this conclusion, the AJ noted
that some of individuals whom appellant alleged would corroborate her
allegation that she was treated more harshly did not so corroborate this
allegation. While noting that the investigator did not interview all
of the individuals who were alleged to have been treated more favorably,
the AJ noted that those interviewed stated that neither they, themselves,
nor others, were treated more favorably. The AJ also noted that appellant
failed to submit a witness list or additional documentation in support
of her allegation. The AJ thus concluded that appellant failed to
present evidence which would raise a genuine issue of material fact.
The agency's FAD adopted the AJ's RD. On appeal, appellant contends,
among other things, that the AJ's decision was unfair and impartial.
The agency stands on the record and requests that we affirm its FAD.
After a careful review of the record, the Commission finds that concerning
the allegation of disparate treatment, the AJ's RD summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We agree with the AJ that appellant presented no evidence that others were
treated more favorably by not being disciplined for habitual tardiness,
and thus she failed to demonstrate that the issuance of the LETTER was
motivated by discriminatory animus. The Commission notes, however,
that the AJ did not address appellant's allegation that the issuance of
the LETTER was intended to harass her under any or all of appellant's
alleged bases. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993). However, we find that the issuance of the LETTER was supported by
appellant's record of habitually poor attendance, and therefore was not
sufficiently severe or pervasive so as to create a hostile environment.
We discern no basis to disturb the AJ's findings of no discrimination
which were based on a detailed assessment of the record. 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:
Jan 29, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations