0120091480
05-12-2009
Veronica H. Lawson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Veronica H. Lawson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091480
Agency No. 200J-0335-2007103879
Hearing No. 443-2008-00093X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 27, 2009 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American) and disability (hearing, seeing, digestive problems) when:
from July 29, 2007 to August 3, 2007, she was ignored, allegedly harassed and relieved of her training instructor duties.
The record reflects that a hearing was held before an EEOC Administrative Judge (AJ). After considering the testimony of the witnesses, the AJ determined that complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race and disability.1 With respect to complainant's harassment claim, the AJ found that complainant did not prove she was subjected to harassment sufficiently severe or pervasive so as to render her work environment hostile.
At the time of the events at issue, complainant was employed by the agency as a Veterans Services Representative in Chicago. In addition to her regular duties, the AJ determined that complainant was selected as a backup instructor for a three-week training course (the "Challenge" course) provided to for new Veterans Services Representatives. She was provided with training in how to instruct the Challenge course, and then was notified that she teaching one of the three-week courses in St. Paul, Minnesota, along with an experienced trainer. The AJ found that she received negative feedback evaluations from her students for the first three days of the training, despite being provided with a mentor, and the agency removed her from her training duties. After she returned to Chicago, complainant took a leave of absence and then returned to her regular duties as a Veterans Services Representative, where she currently remains.
The AJ determined that complainant conceded that she had performance difficulties in conducting the training, but offered a number of excuses for these problems. However, the AJ concluded that none of complainant's proffered excuses created an inference of discrimination or showed pretext.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
On appeal, complainant asserts that she had a "nervous breakdown" as a result of the "severe racism" she experienced in St. Paul during the training course. However, in her statement on appeal, she provided no information about the alleged incidents of racism. During the hearing, complainant testified that she believed the other two instructors (Caucasian) ignored her, "shh'ed" her when she was in the back of the class flipping pages of her notes (by saying, "Shh, we have to be quiet in the back of the room"), the training mentor (Caucasian) frequently interrupted her when she was teaching the class, and when the other two instructors, both fair-skinned women, discussed how they were sensitive to the sun and burned easily while in the car with complainant, making her feel uncomfortable. However, other than her bare assertions, there is no evidence indicating that these incidents were connected to complainant's race.
Accordingly, after a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 12, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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