Joyce B. Sidbury, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 29, 2000
01983226 (E.E.O.C. Feb. 29, 2000)

01983226

02-29-2000

Joyce B. Sidbury, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Joyce B. Sidbury v. Department of Veterans Affairs

01983226

February 29, 2000

Joyce B. Sidbury, )

Complainant, )

)

v. )

) Appeal No. 01983226

Togo D. West, Jr., ) Agency No. 96-0442

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

INTRODUCTION

Complainant 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 (African American),

reprisal (prior EEO activity), and age (50), 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.<1> Complainant alleges she was discriminated

against when: (1) on July 7, 1995, her supervisor issued her a memorandum

of counseling regarding reporting late for work on numerous occasions;

(2) on August 25, 1995, she received a memorandum of admonishment from

her supervisor; (3) on September 14, 1995, her supervisor issued her

a memorandum of counseling for failure to follow instructions; (4)

on October 13, 1995, she received a memorandum of reprimand from her

supervisor regarding reporting late for work on numerous occasions; (5)

on October 13, 1995, complainant received a memorandum from her supervisor

informing her that her compressed work schedule would be discontinued;

and (6) on October 27, 1995, complainant received a memorandum from her

supervisor informing her that her performance in the "Office Management"

critical element was less than Fully Successful. 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, reprisal, and age.

BACKGROUND

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

as a secretary in the Office of Acquisition and Material Management

Service at the agency's Washington D.C. facility. Complainant alleges

that she was subject to several acts of employment discrimination,

regarding admonishments, duty hours, performance appraisals, time and

attendance, and reprimands. Believing she was a victim of discrimination,

complainant sought EEO counseling. Subsequently, on November 20, 1995,

she filed a formal complaint.

Following an investigation of the complaint, complainant requested a

hearing before an EEOC Administrative Judge (AJ). The AJ found that there

were no issues of material fact to be decided in this case and issued his

Findings and Conclusions based on the written record on December 18, 1997.

The AJ concluded that complainant failed to establish a prima facie

case of racial or age discrimination because she failed to demonstrate

that similarly situated non-African American and younger employees

were treated differently. Further, complainant did not show that she

had engaged in prior EEO activity, thereby failing to establish a prima

facie case of discrimination based on reprisal. The AJ concluded that the

agency articulated legitimate, nondiscriminatory reasons for its actions.

Specifically, the AJ determined that complainant exhibited performance

and conduct deficiencies; and that complainant did not establish that,

more likely than not, the agency's articulated reasons were pretext

for discrimination. Accordingly, the AJ concluded that the agency did

not discriminate against the complainant.

The agency issued a FAD concurring with the AJ's findings of fact and

conclusions of law.

On appeal, complainant does not raise any new contentions.

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 findings and conclusions properly summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

We conclude that complainant failed to present 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

or age. Therefore, we discern no basis to disturb the AJ's recommended

findings and conclusions.

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 (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:

February 29, 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.