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