The Estate of Janie L. Jones, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, National Institutes of Health, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01972144 (E.E.O.C. Feb. 18, 2000)

01972144

02-18-2000

The Estate of Janie L. Jones, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, National Institutes of Health, Agency.


The Estate of Janie L. Jones v. Department of Health and Human Services

01972144

February 18, 2000

The Estate of Janie L. Jones, )

Complainant, )

) Appeal No. 01972144

v. ) Agency No. NIH 507-90

) Hearing No. 120-95-6444X

Donna E. Shalala, )

Secretary, )

Department of Health and )

Human Services, )

National Institutes of Health, )

Agency. )

)

DECISION

Complainant's estate 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), age

(DOB 9/16/39), and disabilities (hypothyroidism, depression, hypokalemia,

and hypertension), in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. �2000e et seq.; the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.;

and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791, et

seq.<1> Complainant alleges she was discriminated against when: (1)

on April 17, 1990, she was denied her within-grade increase (WIGI);

and (2) on April 17, 1990, she was terminated from employment with

the Federal government. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the agency's decision

is AFFIRMED.

The record reveals that at the time of the alleged acts of discrimination,

complainant was a Nursing Assistant (a.k.a. Patient Aid Technician,

hereinafter PAT) at the National Institutes of Health. The record reveals

that since approximately 1984, complainant was repeatedly admonished by

her supervisor for leave usage, absenteeism and attendance deficiencies.

Complainant maintained that her absences were due to her disabilities. She

was ultimately placed on special leave procedures and required to submit

documentation from a health care provider for sick leave and unplanned

leave. Complainant indicated that others were treated more favorably with

regard to their time and attendance problems than she was and that she

had received a WIGI for the last twenty years. She maintained that she

had never been counseled regarding the impact that her leave usage would

have on a WIGI. Believing she was a victim of discrimination, complainant

filed a formal EEO complaint with the agency on June 4, 1990, alleging

that the agency had discriminated against her as referenced above. At the

conclusion of the investigation, complainant 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 complainant failed to establish a prima facie case

of race and age discrimination because she failed to demonstrate that

similarly situated employees not in her protected classes were treated

differently under similar circumstances. Nevertheless, the AJ concluded

that the agency had articulated legitimate, nondiscriminatory reasons

for its actions, namely that complainant was not performing up to the

reasonable and legitimate expectations required of her position. The

AJ noted that complainant had amassed hundreds of hours of AWOL, had

failed to follow instructions, slept on the job and put patient care

in jeopardy. The AJ found that there was sufficient cause to terminate

complainant as the agency had documented complainant's attendance

and performance difficulties for six years and had given complainant

opportunities to improve.

With regard to complainant's claim of disability discrimination, the

AJ found that complainant had failed to establish a prima facie case

of disability discrimination because none of complainant's conditions,

combined or individually rose to the level of a disability. The AJ

held that complainant had failed to demonstrate that her conditions

substantially limited a major life activity. Further the AJ found that

complainant was not a "qualified disabled individual" as complainant had

not established that she was performing the essential function of the

PAT position without endangering the health and safety of others. The AJ

also noted that the medical documentation revealed that complainant's

doctors agreed that her conditions should not effect the performance

of her duties. Again, the AJ noted that the agency had documented

complainant's performance deficiencies.

The AJ found that even if complainant had established a prima facie case

of race, age, and disability discrimination, she had not established that

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

to mask unlawful discrimination. The agency's FAD adopted the AJ's RD.

On appeal, complainant contends that the AJ erred when he failed to grant

a hearing, when he did not specifically address the race and age issue,

and when he did not consider the systemic discrimination allegedly found

at NIH and the hostility that complainant faced. The agency responds by

restating the position it took in its FAD, and requests that we affirm

its FAD.

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws and properly addressed the issues

complainant raised on appeal. We note that complainant failed to present

evidence that any of the agency's actions were motivated by discriminatory

animus toward her race, age or disabilities. 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 complainant's contentions on appeal, the agency's

response, and 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 18, 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

_________________________

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.