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.