Burma B. Asbell, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01971871 (E.E.O.C. Oct. 14, 1999)

01971871

10-14-1999

Burma B. Asbell, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Burma B. Asbell v. Department of Veterans Affairs

01971871

October 14, 1999

Burma B. Asbell, )

Appellant, )

) Appeal No. 01971871

v. ) Agency No. 96-1261

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

INTRODUCTION

On December 16, 1996, Burma B. Asbell (the appellant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) dated November 29, 1996, concerning

her 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., and the Age Discrimination in Employment Act of 1967, as amended,

29 U.S.C. �621 et seq. The Commission hereby accepts the appeal in

accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly determined that

appellant had failed to prove that the agency discriminated against her

based on age and reprisal.

BACKGROUND

Appellant was employed by the agency as a Licensed Practical Nurse at

the VA Medical Center in Gainesville, Florida (the Facility). Appellant

filed a formal complaint on April 12, 1996, alleging discrimination on

the bases of age (63) and reprisal (prior EEO activity). She alleged

that she was discriminated against when: 1) on February 21, 1996, she

received an admonishment; 2) on March 6, 1996, she was reassigned to the

Nursing Education Office; and 3) on March 6, 1996, she was harassed when

she received a Letter of Unacceptable Conduct. The agency accepted the

complaint for investigation and processing. At the conclusion of the

investigation, the agency issued a copy of its investigative report and

notified appellant of her right to request an administrative hearing.

After appellant failed to request a hearing, the agency issued its FAD

on November 29, 1996.

In its FAD, the agency found that the appellant had failed to establish

a prima facie case of age or reprisal discrimination. The FAD further

stated that appellant had failed to establish that the legitimate,

nondiscriminatory reason articulated by the agency for its decision

was a pretext for discrimination. This appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For appellant to prevail, she must first 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.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency

has met its burden, the complainant bears the ultimate responsibility

to persuade the fact finder by a preponderance of the evidence that

the agency acted on the basis of a prohibited reason. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether appellant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In response to appellant's claims of discrimination, the agency

presented evidence that appellant had made errors in administering

medication to patients at the Facility. These errors were in violation of

hospital policy regarding the procedures for administering medications.

Additionally, evidence was presented to show that appellant had not

received both an admonishment and a Letter of Unacceptable Conduct, but

that rather she had only received the Letter of Unacceptable Conduct

regarding the medication errors. The reassignment to the Nursing

Education Office was made in response to these medication errors so that

the agency could evaluate appellant's nursing practices. We find that

the agency has articulated a legitimate, nondiscriminatory reason for

its actions.

Since the agency articulated a legitimate, nondiscriminatory reason for

its actions, the burden returns to the appellant to demonstrate that the

agency's articulated reason was a pretext for discrimination. We find

that appellant has failed to do so. As evidence of pretext, appellant

pointed to comments made to her by the Charge Nurse on her shift that if

he had her years of service in and were also her age he would retire.

In his affidavit, the Charge Nurse testified that he said this only

as an expression of his own personal preference for what he will do

when he has reached a similar status to appellant's. The Charge Nurse

did not participate in the decisions to issue appellant the Letter of

Unacceptable Conduct or transfer her to the Nursing Education Office,

and he did not have decision-making authority over appellant for these

types of employment matters. Appellant presented no evidence which

would show that the responsible officials had acted on the basis of

either her age or in reprisal for her previous EEO activity, and we do

not find evidence in the record to support such an argument. Therefore,

the agency's determination that appellant failed to establish that she

was discriminated against was correct.

Accordingly, the decision of the agency was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Oct. 14, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations