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.