02A30012
02-17-2004
Agency.
Doris J. Blue v. Department of Veterans Affairs
02A30012
February 17, 2004
.
Doris J. Blue,
Grievant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 02A30012
Agency No. FMCS0210767
DECISION
Pursuant to 29 C.F.R. � 1614.401(d) and � 1614.405, the Commission
accepts the grievant's appeal from the decision of an arbitrator in the
above-entitled matter. The grievant initiated a proceeding in accordance
with the agency's negotiated grievance procedure. The issue on appeal is
whether grievant has established that the agency discriminated against
her in reprisal for prior EEO activity in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. when: (1) she was discharged on May 25, 2002; and (2) the agency
improperly withheld information necessary for the Union to properly
represent her.
BACKGROUND
During the period in question, grievant worked as a Registered Nurse at
the Veterans Affairs Medical Center in Birmingham, Alabama. Grievant
began her employment in 1970. In 1976, she joined the Union. In 1980,
she was elected to a Union office. In 1993, grievant became President
of Local 2207 of American Federation of Government Employees (AFGE).
According to the record, on November 1, 2001, the agency issued a proposed
discharge to grievant. On February 14, 2002, the agency rescinded the
November 1, 2001 proposed discharged and issued an �Amended Proposed
Discharge.� Grievant was charged with numerous absences without leave
(AWOL), Failure to Follow Proper Procedure for Requesting Leave, leaving
the job to which she was assigned without permission, and requesting
leave under false pretenses. The Union respond on March 4, 2002.
Management discharged grievant effective March 25, 2002. Grievant filed
this grievance on April 3, 2002. The Union requested nineteen separate
items of information. The agency denied the request on the grounds that
the request was too broad and burdensome.
An arbitrator found that the agency did not improperly withhold
information. Specifically, the arbitrator found that the documents
requested by the Union were pertaining to grievant's leave requests.
The arbitrator also found that grievant had access to her personnel file;
and that she knew how to access the computer to obtain regulations,
policies, and her leave records. The arbitrator further found that
these documents requested by the Union did not aid in grievant's defense.
The Arbitrator also found that complainant was discharged for just cause.
Specifically, the Arbitrator found that grievant was unwilling to
accept any instruction from the agency and wanted to remain at 100%
official time, which she could not do. The Arbitrator further found
that on several occasions grievant was instructed to report to duty
and did not. The Arbitrator noted that grievant requested leave to
attend Union activities; the leave requests were denied, and grievant
still attended the activities regardless. Therefore, the Arbitrator
concluded that the evidence showed that grievant was unwilling to change
and refused to obey the agency's direct orders.
On appeal, grievant reiterated her previous contentions, stated that
the Arbitrator completely ignored her claim of discrimination; and
failed to consider or analyze any of the numerous affirmative defenses
raised by her. The agency argues that complainant failed to prove,
by a preponderance of the evidence, that its actions were motivated by
unlawful retaliation under Title VII.
ANALYSIS AND FINDINGS
When a grievant relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the grievant to establish a prima facie case
of discrimination. McDonnell Douglas, 411 U.S. at 802. The burden then
shifts to the agency to articulate some legitimate, nondiscriminatory
reason for its challenged action. Id. If the agency is successful, the
grievant must then prove, by a preponderance of the evidence, that the
legitimate, nondiscriminatory reason articulated by the agency is merely
pretext for its discrimination. McDonnell Douglas, 411 U.S. at 804.
The burden of persuasion always remains with the grievant.
We find that the agency articulated a legitimate, nondiscriminatory
reason for its action; namely, complainant had numerous unexcused or
unauthorized absences, failed to follow proper procedures for requesting
leave, deliberately failed or unreasonably delayed in carrying out
instructions, left the job to which she was assigned during working hours
without proper permission, and requested leave under false pretenses.
Now, we proceed to determining whether grievant satisfied her burden of
showing pretext. Grievant may do this in one of two ways, either directly,
by showing that a discriminatory reason more likely, motivated the agency,
or indirectly, by showing that the agency's proffered explanation is
unworthy of credence. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981). Upon, the review, the Commission finds that
complainant has failed to meet her burden. In reaching this conclusion,
we note that complainant merely argued that the agency's action was
based on her prior EEO activity and/or her union's activities; however,
complainant failed to proffer sufficient evidence to corroborate these
statements. Additionally, we note that complainant failed to rebut any
of the agency's articulated reasons. We further note that complainant
admitted that on some occasions management denied her leave requests
and she still did not come to work.
CONCLUSION
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 Arbitrator's decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
February 17, 2004
__________________
Date