01982178
04-14-2000
Alice Jackson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Alice Jackson v. Department of the Army
01982178
April 14, 2000
Alice Jackson, )
Complainant, )
) Appeal No. 01982178
v. ) Agency No. BPD2F09312D0680
) Hearing No. 110-96-8207X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). Complainant alleges she was discriminated
against on the bases of race (Black), sex (female) and retaliation on
December 17, 1993, when she was terminated due to a lack of performance.
For the following reasons, the Commission AFFIRMS the agency's decision.
The record reveals that on May 3, 1993, complainant began employment
at the agency's Eisenhower Army Medical Center in Fort Gordon, Georgia
as a nurse in the Surgical Intensive Care Unit (SICU). Complainant's
first-line supervisor was supervisor A. Complainant's second-line
supervisor was supervisor B.
The record shows that complainant was a probationary employee at the
time of her termination. Complainant's termination letter described
as the basis for the termination decision the following incidents: 1)
on November 4, 1993, complainant failed to completely hook-up a medical
monitor, or perform any of the necessary parameters; 2) on October 28,
1993, complainant failed to hand the proper intravenous fluid, and
she failed to assess the oxygen setting of her patient's supplemental
oxygen; 3) on October 23, 1993, complainant failed to initiate morphine
on a patient for which it had been ordered; 4) on October 20, 1993,
complainant delayed in carrying out a doctor's order to give a patient
Clonidine; and 5) in July 1993, complainant left a patient in the care
of another nurse without knowing the status of her patient.
With regard to her prior EEO activity, the record indicates that in late
1991, complainant filed an EEO complaint against the agency while she
was employed as a clinical nurse at the agency's 97th General Hospital
in Frankfurt, Germany. The record also indicates that this complaint
was resolved soon afterwards.
Complainant essentially alleges that she was destined to fail because
she purportedly had not been counseled for the incidents which prompted
her termination when they occurred. Complainant stated that she was
under close scrutiny by her co-workers. Complainant further stated that
during a counseling session, supervisor A commented that she did not need
an EEO complaint filed against her, and that it was difficult to tell
civilian nurses what to do. Complainant also alleges that supervisor B
had knowledge of her prior EEO activity in Germany, and that supervisor
B retaliated against her by agreeing to terminate her because of that
activity. Specifically, complainant stated that supervisor B commented
that her "reputation precedes" her. Complainant further stated that
supervisor B told her that she had received some phone calls from Germany
regarding her prior EEO activity, and that "we take care of our own."
While noting that she was not aware of complainant's prior EEO activity,
supervisor A stated that she did not make a statement regarding an EEO
complaint or express a preference for military nurses. She further
stated that complainant was not a team player and that she did not
get along well with others. Supervisor A testified that complainant
never really accepted a learner's role, but rather chose to dictate
and have other nurses do the work while she documented their actions.
She further testified that she and others provided verbal and written
counseling to complainant regarding various performance deficiencies
on several occasions. Supervisor A stated that when complainant and
another nurse disobeyed an order to provide coverage to an understaffed
unit, both were counseled. She further stated that when complainant and
another nurse were involved in an altercation, she reprimanded them for
their behavior. Supervisor A declared that complainant received timely
feedback - whether through her, a head nurse or an incident report
that was triggered from complainant's actions involving a patient.
She also noted that complainant usually responded to her counseling
by addressing each point in writing and by taking a defensive posture
rather than improving her weaknesses. Supervisor A indicated that she
offered to make training available to complainant, but that complainant
was unwilling to follow through most of the time.
Supervisor B stated that she never heard about complainant's prior EEO
activity in Germany, and that she did not communicate anything otherwise
to complainant. While noting that she had heard that complainant was
a dangerous nurse, she declared that this did not really influence her
treatment of complainant. Supervisor B explained that the "only way that
it affected me was for me to purposely put her under a Black head nurse
[supervisor A] so that that was not an issue, and that we could look
at the quality of her patient care because that was the allegation."
Supervisor B further explained that because she believed the agency's
Eisenhower Army Medical Center has a long history of racial unrest,
she did not want to put complainant, who was alleged to have performance
problems, in a situation that might be exacerbated by race. Supervisor B
stated that she had reasoned that putting complainant under a Black head
nurse "could dilute the race factor." Supervisor B acknowledged that
it was both she and supervisor A's decision to terminate complainant.
On appeal, complainant essentially contends that she was placed in
a hostile environment from the start, and that she was never given
the opportunity to acclimate to the SICU as the other nurses were.
She further contends that reprisal was a driving force which diminished
any chance she had at succeeding in the SICU.
Complainant sought EEO counseling and subsequently filed a formal
complaint on April 4, 1994. The complaint was accepted, on April
5, 1994, for processing, but was settled pursuant to a negotiated
settlement agreement in May 1994. However, on November 13, 1995, the
agency notified complainant that it had not been in compliance with the
settlement agreement, and that it was granting her request to reinstate
the complaint. At the completion of investigation, complainant was
provided with the opportunity to request either a hearing before an EEOC
Administrative Judge or a FAD without a hearing. Complainant requested
a hearing before an EEOC Administrative Judge (AJ).
After conducting a hearing and reviewing the evidence of record,
the AJ issued a recommended decision (RD), dated September 30, 1997,
finding no discrimination. The AJ found that complainant failed to
establish a prima facie case of race discrimination because she did
not demonstrate that similarly situated employees not in her protected
class were treated differently under similar circumstances. The AJ
also found that complainant failed to show that she had been retaliated
against, and that agency officials were aware of her prior EEO activity.
Furthermore, the AJ concluded that because her prior activity occurred
two years ago under a different chain- of-command while stationed in
a different country, complainant failed to establish a nexus between
her prior activity and the termination action occurring in December
1993. The AJ then concluded that the agency articulated a legitimate,
nondiscriminatory reason for its actions, namely, that complainant was a
threat to patient care and did not improve her performance when counseled.
Finally, the AJ found that complainant's evidence did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination. In its FAD, the agency adopted the
AJ's RD finding no discrimination.
ANALYSIS
Complainant can establish a prima facie case of race discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). In general, to establish a prima facie case
of discrimination based on a Title VII disparate treatment claim,
complainant must show that she belongs to a statutorily protected
class and that she was accorded treatment different from that accorded
persons otherwise similarly situated who are not members of the class.
Comer v. Federal Deposit Insurance Corporation, Request No. 05940649
(May 31, 1996)(citing Potter v. Goodwill Industries of Cleveland, 518
F.2d 864, 865 (6th Cir. 1975)). In order for two or more employees to be
considered similarly situated for the purpose of creating an inference
of disparate treatment, complainant must show that all of the relevant
aspects of her employment situation are nearly identical to those of
the comparative employees whom she alleges were treated differently.
Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).
In a reprisal claim, complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action. McDonnell
Douglas; Hochstadt v. Worcester Foundation for Experimental Biology,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997).
Here the record shows that complainant is a member of a protected
group: Black. However, the Commission finds that complainant has not
established that other employees were treated differently under similar
circumstances. Supervisor A's training regimen for complainant was
seemingly the same for other nurses in the SICU. When complainant and
another nurse disobeyed an order to provide coverage to an understaffed
unit, both were counseled by supervisor A. And when complainant and
another nurse were involved in an altercation, supervisor A reprimanded
them for their behavior. In the absence of any other evidence from which
to infer a discriminatory motive, the Commission finds that complainant
has not established a prima facie case of race discrimination. Also,
the Commission finds that complainant engaged in protected activity in
late 1991; and that she was subjected to adverse treatment by the agency
when she was terminated for lack of performance. However, we find that
complainant has failed to show that either supervisor A or supervisor
B was a responsible official involved in any of her prior EEO activity;
or that either supervisor A or supervisor B had knowledge of her prior
activity. Furthermore, complainant has not shown that there is a nexus
between her prior activity and her termination. We note that a nexus or
causal relationship between her prior protected EEO activity and the later
agency action may be shown by evidence that the adverse action followed
the protected activity within such a period of time and in such a manner
that a reprisal motive can he inferred. Grant v. Bethlehem Steel Corp.,
622 F.2d 43 (2nd Cir. 1980). Generally, the Commission has held that
such a nexus may be established if the protected EEO activity and the
later adverse events occurred within one year of each other. Patton
v. Department of the Navy, EEOC Request No. 05950124 (June 26, 1996).
In the instant case, the time elapsed between the prior protected EEO
activity and the later incident which occurred in December 1993 is well
over a year. Hence, without other evidence, complainant fails to show
the required causal connection between the agency actions and therefore
cannot establish a prima facie case of reprisal discrimination.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
April 14, 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
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.