Oneda Salter, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01993997 (E.E.O.C. Nov. 17, 2000)

01993997

11-17-2000

Oneda Salter, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Oneda Salter v. Department of Veterans Affairs

01993997

11-17-00

.

Oneda Salter,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01993997

Agency No. 97-2301

Hearing No. 160-98-8200X

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (the Commission) from the final agency decision (FAD)

concerning her claim that the agency discriminated against her in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq., and � 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted by the

Commission in accordance with 29 C.F.R. � 1614.405.

The issue presented is whether complainant proved that she was

discriminated against due to her race/color (African-American) and

disability (heat rash and conjunctivitis), and in retaliation for engaging

in previous EEO activity when her temporary part-time employment was

terminated, effective May 16, 1997.

Complainant filed a formal complaint on May 30, 1997. The agency

accepted the complaint, but did not conduct an investigation. After 180

days had expired, in November 1997, complainant requested a hearing before

an EEOC Administrative Judge (AJ). The AJ, upon receiving affidavits

and other documentary evidence from the agency and the complainant,

determined that there were no genuine issues as to any material fact;

therefore, he issued a recommended decision without a hearing. The AJ

concluded that complainant was not discriminated against due to her race,

color, disability or prior EEO activity. The AJ, however, found that the

agency's failure to comply with a discovery request warranted sanctions,

and awarded complainant the costs and expenses she incurred during

discovery. The agency issued a FAD that adopted the findings of the AJ,

including the remedial relief that he ordered. This appeal followed.

Complainant was hired as a temporary part-time Food Service Worker,

on November 27, 1995, at the agency's Buffalo New York Medical Center.

In July 1996, the cafeteria was converted to a food court operation

and complainant was assigned to work for the Burger King franchise.

On May 2, 1997, complainant contacted an EEO counselor concerning the

agency's failure to convert her to a full-time position when the Burger

King franchise was opened. On May 8, 1997, she received a memorandum

terminating her temporary employment. The memorandum indicated that A-1,

the Chief of Canteen Service, had terminated complainant because of her

unsatisfactory performance.

Complainant maintained that her termination was due to her race and in

retaliation for contacting an EEO counselor on May 2, 1997. Subsequently,

she also maintained that disability was a basis of discrimination. With

respect to disability, complainant stated that, during the period of April

1, 1997 through May 2, 1997, she received treatments on two occasions

for a heat rash. The rash started when complainant began working in

the kitchen. According to complainant, she was able to return to �full

duty.� In addition, on May 1, 1997, complainant received treatment for

conjunctivitis with etiology. She was advised to follow-up her treatment.

According to complainant, the agency retaliated against her because she

had and was treated for a compensable work-related injury.

According to A-2, Assistant Chief of Canteen Services, complainant

was fully trained in her new responsibilities, but was slow in

making sandwiches, displayed insubordination, and had problems with

her attendance. A-2 stated that the sole reason for complainant's

termination was her unwillingness to meet the requirements of her

position. He described complainant as being sarcastic concerning the

importance of her duties. He also stated that she was timed by a Burger

King Sales Representative and took approximately three minutes to make a

sandwich when the transaction time should only have taken 30-40 seconds.

Finally, he indicated that she took over eleven sick leave days during

a five month period.

The record shows that complainant was informed about a possible abuse

of sick leave. She was also counseled, on March 4, 1997, about her

�negative� attitude, negligent workmanship that resulted in waste and

delay, and her verbally belligerent conduct. At that time, complainant

was given thirty days to improve. The record indicates that training

guides and videos were made available to her in order to help her with

her performance. The agency argued that her May 5, 1997 termination

was justified, because her performance did not improve.

The AJ found that complainant failed to establish prima facie cases of

discrimination based on race and color discrimination. Complainant,

according to the AJ, did not establish that similarly situated persons,

who were outside of her protected groups, were not terminated, after

exhibiting similar work deficiencies, negative attitude, and sick leave

usage. The AJ also found that complainant failed to establish prima

facie cases of disability or reprisal discrimination. With regard to

reprisal, the AJ found that complainant contacted:

[a]n EEO counselor with respect to the failure of the agency to hire her

on a full-time basis on May 2, 1997. On May 8, 1997, complainant informed

her EEO counselor that she had received a Notice of Termination. However,

the record shows that the EEO counselor did not meet with any management

officials with respect to her full-time employment or termination until

May 23, 1997.

Finally, the AJ stated that:

assuming, arguendo, complainant had established a prima facie case of

race/color, disability and retaliation discrimination, I find that the

agency articulated legitimate, non-pretextual reasons for the termination.

It is more likely than not that it was complainant's poor attendance

record, negative attitude towards her work, and work deficiencies [that]

were the reasons for her termination and not because of any prohibited

discrimination.�

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

because the Administrative Judge's issuance of a decision without a

hearing was appropriate and a preponderance of the record evidence does

not establish that discrimination occurred.<2>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

__11-17-00____________________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The AJ erred in concluding that complainant did not establish a prima

facie case of race and color discrimination merely because she did not

identify similarly situated co-workers, who were of a different race or

color, treated in a more favorable manner. To establish a prima facie

case, complainant need only present evidence which, if unrebutted,

would support an inference that the agency's actions resulted from

discrimination based on her race or color. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). It is not necessary for

complainant to show that a comparative individual, from outside of her

protected group, was treated differently. O'Connor v. Consolidated

Coin Caterers Corp., 517 U.S. 308 (1996); Enforcement Guidance on

O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002,

n.4 (September 18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157,

159 (7th Cir. 1996). The agency provided legitimate, non-discriminatory

reasons for complainant's termination. Because the AJ correctly found

that complainant did not establish pretext, we find that the AJ's error

was harmless.