Charlotte Council,

Complainant,



v. 



Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.



Appeal No. 0120080321



Hearing No. 430-2007-00110X



Agency No. 2004-0652-2006102395



DECISION



On October 19, 2007, complainant filed an appeal from the agency's
September 18, 2007 final decision 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. §
1614.405(a).  For the following reasons, the Commission AFFIRMS the
agency's final decision.



ISSUES PRESENTED



The issues presented are: (1) whether the EEOC Administrative Judge (AJ)
abused her discretion in dismissing complainant's request for a hearing
as a sanction for failing to prosecute her case; and (2) whether the
agency properly found that complainant was not discriminated against
based on her race and age.



BACKGROUND



At the time of the events giving rise to this complaint, complainant
worked as a Medical Support Assistant, GS-5, at the agency's Veterans
Affairs Medical Center in Richmond, Virginia.  On June 16, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of race (Caucasian) and age (51-years old at the
time of the incidents) when:



(1) On April 4, 2006, complainant's supervisor harassed her when she
failed to complete a work assignment (involving consults as instructed); 



(2) On April 12, 2006, management issued complainant three letters of
performance counseling for work related issues that occurred on April 5,
6, and 10, 2006;



(3) On April 14, 2006, management counseled complainant for displaying
"rude behavior" towards a patient;



(4) On April 17, 2006, management issued complainant a performance
appraisal letter of counseling;



(5) On April 17 and April 21, 2006, management failed to train and orient
complainant to her assigned duties; 



(6) On April 18, 2006, complainant received a written counseling for
"rude behavior" towards a staff member in the presence of a patient; and



(7) On April 19, 2006, complainant was issued a letter of termination
(during the probationary period) with an effective date of April 21,
2006.



At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an AJ.  Complainant requested a hearing.  On August
28, 2007, the AJ dismissed the hearing request due to the fact that
complainant had "repeatedly failed to prosecute her case by her failure
to timely submit her [pre-hearing statement] or otherwise proceed with
this complaint."  The AJ remanded the complaint to the agency, and the
agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).  



The agency's final decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.  Specifically, the
agency found that complainant failed to establish a prima facie case of
race or age discrimination and that she failed to establish that the
agency's legitimate, nondiscriminatory reasons for its actions were a
pretext for unlawful discrimination.



CONTENTIONS ON APPEAL



On appeal, through her representative, complainant argues that the
AJ improperly denied her request for a hearing because her failure to
properly prosecute her case did not warrant such an "extreme sanction."
Complainant further argues that the Commission should reverse the agency's
decision and remand the matter for further proceedings on the merits.
In response to complainant's appeal, the agency urges the Commission to
affirm its final decision.  The agency argues that complainant "did not
show that [the AJ] abused her discretion in dismissing her request for
a hearing or that any of the action taken against her by the Agency was
not business related without any nexus to her age or race."



ANALYSIS AND FINDINGS



As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a).  See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").



AJ's Sanction



We first address the AJ's decision to dismiss complainant's request
for a hearing and remand the matter to the agency.  The Commission's
regulations afford broad authority to AJs for the conduct of hearings,
including the authority to sanction a party for failure without good
cause shown to fully comply with an order.  See 29 C.F.R. § 1614.109
et seq.; Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), Chapter 7, § III(D) (November 9, 1999).
Where a party, inter alia, fails to respond to an order of an AJ,
the AJ may, as appropriate, take action against the non-complying
party pursuant to 29 C.F.R. § 1614.109(f)(3), i.e., an AJ may: (1)
draw an adverse inference that the requested information would have
reflected unfavorably on the non-complying party; (2) consider the
requested information to be established in favor of the opposing party;
(3) exclude other evidence offered by the non-complying party; (4)
issue a decision fully or partially in favor of the opposing party; or
(5) take other action deemed appropriate.  Before sanctions are imposed,
the Commission requires that the AJ notify the parties of what sanctions
or other actions may be imposed for failure to comply with the AJ's order.
EEO-MD-110, Chapter 7, § III(B).



Upon review, we find that the AJ did not abuse her discretion in imposing
a sanction against complainant.  In her dismissal notice, the AJ indicated
that she issued an Acknowledgment and Order on March 5, 2007, advising the
parties that failure to follow her orders may result in sanctions pursuant
to 29 C.F.R. § 1614.109(f)(3).  The AJ indicated that both parties failed
to submit pre-hearing statements by the August 6, 2007 deadline, and
she subsequently granted the parties' request for an extension of time,
until August 27, 2007, to file statements.  Neither complainant nor her
designated representative submitted a pre-hearing statement to the AJ by
the August 27, 2007 deadline.  The AJ noted that complainant still had
not submitted her statement on August 28, 2007, the date of the scheduled
pre-hearing conference.  The AJ further noted that complainant did not
provide a reason warranting an extension of time to submit her statement.
Accordingly, we find that the imposition of a sanction in this case was
properly in the AJ's discretion given complainant's repeated failure to
respond to the AJ's orders.



With respect to the sanction imposed, the Commission has held that
sanctions, while corrective, also act to prevent similar misconduct in the
future and must be tailored to each situation, applying the least severe
sanction necessary to respond to the party's failure to show good cause
for its actions and to equitably remedy the opposing party.  See Hale
v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000).
We find that the AJ's decision to dismiss complainant's request for a
hearing and remand the case to the agency due to her failure to prosecute
her case was appropriate given the fact that complainant repeatedly
failed to respond to the AJ's orders and failed to demonstrate good
cause for not submitting her pre-hearing statement in a timely manner.
We note that complainant not only failed to provide a statement by the
second deadline established by the AJ, but she also failed to respond
to the AJ's order or provide a reason warranting an extension of time to
submit a statement by the scheduled pre-hearing conference the next day.



On appeal, complainant asserts that the AJ erred in dismissing her
hearing request without first issuing a show cause order or generally
providing her with an opportunity to explain why she did not submit a
timely pre-hearing statement.  However, as noted above, a show cause
order was not necessary in this case because complainant was previously
placed on notice of the sanctions that could be imposed for failure to
submit a pre-hearing statement in a timely manner.  Furthermore, she
failed to request an extension of time or demonstrate good cause for
failing to comply with the AJ's orders.  She also failed to provide good
cause for her inaction on appeal.  We find that complainant failed to
present sufficient evidence to support her contention that the AJ's action
constituted an abuse of discretion.  See Sanders v. United States Postal
Service, EEOC Appeal No. 01A00214 (February 10, 2000) (finding that the
AJ acted within her discretion when she cancelled a hearing and remanded
the matter to the agency after complainant failed to submit a timely
pre-hearing statement); see also Grant v. Department of the Navy, EEOC
Appeal No. 0120064456 (January 7, 2009) ("dismissing a hearing request
is an appropriate sanction for failure to comply with an AJ's Order").



Disparate Treatment 



To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).  Complainant must initially
establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination.  Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978).  Proof of a prima facie case will vary depending
on the facts of the particular case.  McDonnell Douglas, 411 U.S. at 804
n. 14.  The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions.  Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981).  To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual.  Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).



Assuming arguendo that complainant established a prima facie case of race
and age discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions.  Complainant's supervisor
submitted an affidavit into the record stating that she discussed
complainant's incomplete work assignment with her on April 4, 2006,
because the supervisor spoke with the clerical staff on a daily basis
regarding their consults.  The supervisor noted that complainant had
failed to complete her consults on that date, and the other employees
that were assigned consults that day had completed their assignments
as instructed.  The supervisor stated that she issued complainant three
letters of performance counseling on April 12, 2006 because complainant
failed to complete several job assignments in a timely manner.  



With respect to the counseling complainant received on April 14 and
April 18, 2006, the supervisor stated that complainant was counseled for
improperly exhibiting "rude behavior" towards a patient and a staff member
in the presence of a patient on those respective dates.  The supervisor
denied that she issued complainant a performance appraisal letter of
counseling on April 17, 2006, and she also denied that complainant was
not given training.  The supervisor noted that complainant had previously
attended a formal training course, and complainant was assigned a "buddy"
to provide her with informal training on a daily basis.  The supervisor
stated that complainant was issued a letter of termination on April 19,
2006 due to her poor work performance.  The Chief of Health Administration
Service, complainant's second line supervisor, submitted an affidavit
stating that complainant was terminated due to "performance issues"
and demonstrating "rude behavior to and in front of patients."



Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext
for discrimination.  We note that complainant did not provide the
investigator with an affidavit or address the merits of her claims on
appeal.  As a neutral party, we are simply not persuaded, based on our
review of the record of investigation, that complainant has shown that the
agency's articulated reasons for its actions were a pretext for unlawful
discrimination based on race or age. Accordingly, we concur with the
agency's determination that complainant failed to establish pretext.  



Finally, regarding complainant's claim that she was subjected to a
hostile work environment, we find under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's
claim of hostile work environment must fail.  See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,
1994).  A finding of a hostile work environment is precluded based on
our determination that complainant failed to establish that any of the
actions taken by the agency were motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000).

CONCLUSION



Accordingly, based on our thorough review of the record,   the Commission
determines that the agency's final decision finding no discrimination
was proper and is AFFIRMED.



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





____4/09/10_______________

Date







2

0120080321













U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

 Office of Federal Operations

P.O. Box 77960

Washington, DC 20013 







2

0120080321