01A14745
12-18-2002
Beverly A. Baker, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Beverly A. Baker v. Department of Veterans Affairs
01A14745
December 18, 2002
.
Beverly A. Baker,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A14745
Agency No. 99-0206
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning her complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. At all times
relevant to the agency action at issue, complainant was employed at
the agency's Coatesville Medical Center in Coatesville, Pennsylvania.
Complainant alleges in her complaint that she was subjected to unlawful
discrimination on the bases of her race (African-American), color (black),
and disability (back, neck, and shoulder injury) when, on February 14,
1999, she was reassigned from her position as a Housekeeper to that
of a Health Aide in the agency's �Silver Spoon Program� (SSP).<1>
At the conclusion of the agency's investigation into her complaint,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or, alternatively, to receive a final decision by
the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a FAD.
In its FAD, the agency concluded that complainant had failed to establish
that she had been subjected to unlawful discrimination as alleged.
The agency found that complainant had established a prima facie case
as to her claims, as she had been assigned to the SSP at its outset in
1999, and at that time only African-Americans were in the program,<2>
and because she had established that, at the relevant time, she had
been regarded by the agency as a qualified individual with a disability.
The agency further found, however, that it had articulated legitimate,
nondiscriminatory reasons for placing complainant in the program.
The agency found that the evidence established that the SSP had been
initiated to ensure that employees would be available to feed certain
patients at the medical center who were incapable of feeding themselves,
and in an attempt to reduce workers' compensation costs by providing
work for employees on light duty assignments; that the program was
applied uniformly to all employees; and that while the first employees
selected for the program were African-Americans, they were also the only
employees who were on light duty status at that time, and therefore the
only employees eligible for inclusion in the program. The agency further
found that complainant failed to present any evidence that its articulated
reasons were mere pretext for unlawful discrimination, and concluded that
she failed to prove by a preponderance of the evidence that she had been
unlawfully discriminated against as claimed. This appeal followed.
In a claim such as that presented by complainant, which alleges disparate
treatment based upon race, color, and/or disability, and where there
is an absence of direct evidence of such discrimination, the allocation
of burdens and order of presentation of proof is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Presley
v. United States Postal Serv., EEOC Request No. 05980656 (Sept. 20,
2001) (applying McDonnell Douglas analysis to disability claims).
First, complainant must establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination; i.e., that a prohibited consideration was
a factor in the adverse employment action. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
Applying this analysis to the instant matter, we find that the agency
properly concluded that complainant failed to establish that she had
been subjected to unlawful discrimination as alleged. Even assuming
for the sake of this appeal that she established a prima facie case
as to her race, color, and disability discrimination allegations,
the agency correctly found in its FAD that it articulated legitimate,
nondiscriminatory reasons for its actions, as described above. The record
also shows that complaint failed to present any evidence in support
of her allegations or which indicated that the agency's articulated
reasons were unworthy of credence. We note that our review of the
record on appeal failed to reveal any indication that the agency's
decision to place complainant in the SSP was the result of an unlawful
discriminatory animus it held against her based upon her race, color,
or disability status. Accordingly, we conclude that complainant failed
to meet her ultimate burden of proving by a preponderance of the evidence
that she was subjected to unlawful discrimination as claimed.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, it is the decision
of the Commission to AFFIRM the agency's FAD.
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
December 18, 2002
Date
1 In her complaint, complainant also included sex as a discriminatory
basis for the alleged unlawful activity, as well as the additional
allegation that her duty hours were unlawfully changed because of her
race, color, sex, and disability. Complainant subsequently withdrew
her allegations pertaining to the basis of sex and the additional claim
relating to her duty hours.
2 The record shows that of the six employees initially designated by
agency management as eligible for the SSP in February, 1999, and of the
three (including complainant) who were then assigned to the program,
all six were African-Americans. No non-African-American employee
was identified as eligible for the SSP until April, 1999, and no
non-African-American employee was assigned to the program until May, 1999.