Margaret S. Sheffield, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 7, 2000
01a00455 (E.E.O.C. Feb. 7, 2000)

01a00455

02-07-2000

Margaret S. Sheffield, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Margaret S. Sheffield, )

Complainant, )

)

v. ) Appeal No. 01A00455

) Agency No. 99-3355

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

The complainant timely filed an appeal with this Commission from a

final decision, dated August 17, 1999 and received by the complainant

on September 30, 1999, which the agency issued pursuant to 29

C.F.R. �1614.110.<1> The Commission accepts the complainant's appeal

in accordance with EEOC Order No. 960, as amended.

After obtaining counseling, the complainant filed a formal complaint,

dated January 14, 1994, wherein alleged discrimination regarding numerous

non-selections. During a December 8, 1998 hearing on the complaint, the

Administrative Judge determined that the complainant also alleged that the

agency issued her a reprimand in retaliation for her and her daughter's

EEO activity. The Administrative Judge remanded the retaliation claim to

the agency for investigation. The agency gave the claim a new agency

case number and investigated the claim. After receiving a copy of

the investigative file and notice of her right to request a hearing,

the complainant requested a final agency decision without a hearing.

The agency issued a final decision wherein it found that the complainant

failed to prove discrimination based on disability because there

was no evidence in the record that the complainant had a disability.

The decision also found that, even assuming that the complainant had

established a prima facie case of discrimination based on race, color,

national origin, and age, he failed to prove that the agency's articulated

reasons for its actions were a pretext for discrimination.

On appeal, the complainant maintains that because the letter of counseling

was placed in her Official Personnel File (OPF), it was a reprimand.

The complainant also contends that even if it was not a reprimand, for

purposes of retaliation informal discipline should be considered to be

an adverse employment action. The complainant does not describe how

she proved that the agency's stated reasons for issuing the counseling

letter were a pretext, i.e., a mask, for retaliation.

The record establishes that the complainant and her daughter were both

employed by the agency at a Medical Center in Little Rock, Arkansas. The

daughter filed a complaint wherein she alleged that a man who worked in

the Human Resources Management Service (HRMS) had sexually harassed her.

The daughter kept notes relating to the alleged sexual harassment in a

file folder which she maintained in a file cabinet in the EEO Office where

she worked. One day she found the file folder laying on a copy machine.

All of the papers had been removed from the file; some papers were still

on the copy machine and the rest were strewn about. According to the

daughter, her second level supervisor saw what had happened and reported

it to the HRMS Chief. The HRMS Chief said he would have the locks

changed.<2> The daughter was advised to keep the file folder at home.

The daughter, who was still very upset because some of the information in

the file folder was embarrassing, then called her mother, the complainant.

The complainant then contacted security and was advised to contact the

agency's Law Enforcement Training Center. The complainant went to the

Center and talked with the Director. According to the Director, the

complainant told him that she suspected that someone had gotten into

her personal file who was not supposed to have done so. She wanted

to know if fingerprints could be lifted off the paper. The Director

indicated that he didn't know for sure, but would think about it. The

Director represented that he later questioned what she was doing coming

to ask him to do an investigation for her that should have come through

the appropriate channels. (Affidavit at page 4). He then contacted

the Acting Chief of Police and the HRMS Chief and informed them of the

complainant's request. No investigation of the fingerprints ever took

place.

On September 15, 1993, the complainant's supervisor, the former Chief,

Social Work, issued the complainant a letter of counseling. The letter

indicated that the complainant had contacted the Law Enforcement

Training Center on August 6, 1993, and requested assistance in

obtaining fingerprints from a file folder. The letter indicated

that the complainant had left the impression that the request was in

conjunction with an official investigation. The letter opined that this

impression, and the fact that the complainant had requested assistance in

a personal matter, was, at the least, improper. The letter counseled the

complainant for her actions and warned her that any further incidents

of such inappropriate conduct could result in disciplinary action.

According to the complainant, her supervisor told her he was issuing the

letter of counseling because the HRMS Chief and the Director of the Law

Enforcement Training Center instructed him to do so.

It is undisputed that the complainant established a prima facie case

of retaliation which the agency rebutted by articulating legitimate,

non-discriminatory reasons for issuing the letter of counseling.

This case turns, therefore, on the question of whether the complainant

proved that, more likely than not, the agency issued her the counseling

letter in retaliation for her and her daughter's EEO activity. After a

review of the entire record, the Commission finds that the complainant

failed to satisfy this burden of proof. The complainant points to

no evidence in the record from which the Commission can infer that

retaliation for EEO activity motivated the issuance of the counseling

letter, when, admittedly, the complainant sought help directly from the

Law Enforcement Training Center instead of requesting an investigation

through the proper channels. In so finding, the Commission recognizes that

the preponderance of the record evidence indicates that the complainant

did not hold herself out to the Law Enforcement Training Center's Director

as an agency official involved in an investigation.

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's finding

that the complainant failed to prove she was issued a letter of counseling

in retaliation for her prior EEO activity.

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 7, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________ ___________________________

DATE 1On 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.

2At the time of the incident, the EEO Office was part of HRMS. The agency

subsequently moved the EEO Office to the Director's Office.