Beverly Burke, Complainant,v.Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionJan 8, 2009
0120083781 (E.E.O.C. Jan. 8, 2009)

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  • In Beverly v. Burke, 9 Ga. 440, 444, color of title was defined to be "a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used — a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law."

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  • In Beverly v. Burke, 9 Ga. 440, 443 (2) (54 Am. D. 351), this court held: "What is meant by color of title? It may be defined to be a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used — a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law.

    Summary of this case from Blue Ridge c. Co. v. Telfair c. Co.

  • In Beverly v. Burke, supra, it was held: "Though the title of an adverse possession be ever so defective, yet the true owner must sue in seven years, or he is barred by his entry."

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Beverly Burke, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.

Beverly Burke,



Michael O Leavitt,


Department of Health and Human Services,


Appeal No. 0120083781

Agency No. HHSIHS04412007


Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's August 15, 2008 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.

Complainant alleged that the agency discriminated against her on the bases

of race (Native American) and reprisal for prior protected EEO activity

under Title VII of the Civil Rights Act of 1964 when she was issued a 3

day suspension for failing to answer her pager. In her formal complaint

as well as in response to the agency's acceptance letter, complainant

also raised claims that she was denied a retention bonus and that she

was subjected to a hostile work environment. The agency did not address

these matters in its decision.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). The agency issued

a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision

concluded that complainant failed to prove that she was subjected to

discrimination as alleged with respect to the suspension.

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").

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that

he 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). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. 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); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

In the instant case, complainant, an operating room Registered Nurse, was

expected to be readily available to respond to emergencies and pages. On

November 5, 2006, complainant was paged at 9:30 a.m., 10 a.m., and 10:20

a.m. to report for an emergency surgery. Comnplainant asserted she did

not receive the messages while she was eating in a restaurant and as a

result, did not report to the hospital until 10:50 a.m. The hospital

had to direct another nurse to cover until she arrived. Complainant

did not deny receiving the messages, rather complainant at first said

she did not hear the beeps or feel a vibration signaling that a message

was received. Complainant later denied having reported that she did not

hear the beep. Instead, she argued that the pagers were not dependable.

However, complainant did not explain why, if she knew the pager was not

dependable, she did not check it more frequently rather than relying upon

being beeped. As such, the Commission is not convinced that the agency's

reasons for suspending complainant were a pretext for discrimination.

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 that portion of the

agency's final decision because the preponderance of the evidence of

record does not establish that discrimination occurred with respect to

the suspension.

However, the Commission notes that the agency did not address the

claims regarding the denial of retention bonus and a hostile work

environment. In effect, by not addressing those claims the agency has

dismissed them. To that extent, the Commission finds that the claim of

no retention bonus for 2005-2006 appears to have been timely raised and

states a claim. With respect to the hostile work environment claim,

complainant's formal complaint merely said that she would "provide

a list of incidents with data and time at a later date." Therefore,

we cannot determine whether it was timely raised or contains sufficient

allegations to state a viable claim that she was subjected to harassment

that was sufficiently severe or pervasive to alter the conditions of her

employment. See Cobb v. Department of the Treasury, Request No. 05970077

(March 13, 1997). However, as the burden is on the agency to support a

dismissal of an EEO claim, we are also remanding this claim for further


The finding of no discrimination regarding the suspension is affirmed. The

matter of the retention bonus and the issue of the hostile work

environment are remanded for further processing in accordance with the

following Order.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with 29

C.F.R. � 1614.108 et seq. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.


Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.



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).


This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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.


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").



Carlton M. Hadden, Director

Office of Federal Operations

January 8, 2009






Office of Federal Operations

P.O. Box 77960

Washington, DC 20013