Agency.

Equal Employment Opportunity CommissionFeb 17, 2004
02A30012 (E.E.O.C. Feb. 17, 2004)

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 On February 14, 2002, the agency rescinded the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