0120093205
04-29-2011
Deba L. Jones, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Deba L. Jones,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093205
Hearing No. 440-2009-00047X
Agency No. 200J05782008101944
DECISION
On July 13, 2009, Complainant timely filed an appeal from the Agency’s
May 26, 2009, 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. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether the Agency subjected Complainant to
reprisal for prior EEO activity when, on February 14, 2008, Complainant
received a Reprimand from the Agency.
BACKGROUND
On April 22, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against her in reprisal for prior protected EEO
activity under Title VII when, on February 14, 2008, Complainant received
a Reprimand from the Agency for refusing to “float” to another unit.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing, but the AJ denied the hearing request on the grounds
that Complainant failed to comply with the AJ’s order to submit her
discovery answers. Consequently, the AJ remanded the complaint to the
Agency, and the Agency issued a final decision pursuant to 29 C.F.R. §�
�1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not file a statement in support of her appeal, and the
Agency requests that we affirm its final decision.
STANDARD OF REVIEW
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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.A. (Nov. 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”).
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, as is the case
here, the allocation of burdens and order of presentation of proof in a
Title VII case alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). 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. McDonnell Douglas, 411 U.S. at 802. Second,
the Agency must articulate a legitimate, nondiscriminatory reason(s) for
its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). And third, if the Agency is successful, then Complainant
must prove by preponderant evidence that the legitimate reason(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
For purposes of our analysis, we assume without so finding that
Complainant established a prima facie case of reprisal. Nonetheless, we
find that the Agency provided a legitimate, non-discriminatory reason for
its actions. Specifically, in an investigative affidavit, the Clinical
Nurse Manager (Manager) stated that Complainant was reprimanded because
she refused to obey the Manager’s directive to provide coverage for
another unit that was short-staffed. Manager’s Affidavit, p. 4.
The Manager further stated that it was her understanding that two other
employees who also refused to float to another unit were also reprimanded.
Id. at 6. Additionally, the Associate Chief Nurse (Associate Chief)
also stated that Complainant was issued a reprimand because she failed
to follow a supervisory command to float to another unit.1
Complainant maintained that there was an agreement that provided that
the Geriatric Clinic staff would not be taken out of that clinic to work
in another area. However, the Associate Nurse stated that, although
Complainant was assigned to work in Geriatrics, her duties also included
covering the other unit because all nursing staff is expected to care
for patients. Id. at 3. The Associate Nurse further stated that she was
unaware of any agreement that stated that Geriatric staff did not have
to float to other units. Id. at 4. We find that Complainant failed to
prove that the Agency’s non-discriminatory explanation was a pretext
for reprisal. Accordingly, we find that the Agency properly found that
Complainant was not subjected to reprisal.
CONCLUSION
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the Agency's final
decision because the preponderance of the evidence of record does not
establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 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).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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 (Z0610)
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”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 29, 2011
Date
1 We note that both the Manager and Associate Chief stated that they
were unaware of Complainant’s prior EEO activity.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120093205
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093205