01990089
02-11-2000
Debra Daughdrill, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Debra Daughdrill v. Department of Veterans Affairs
01990089
February 11, 2000
Debra Daughdrill, )
Complainant, )
) Appeal No. 01990089
v. ) Agency No. 97-2057
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning her complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity), in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the Commission affirms the final agency decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
she was discriminated against on the above basis when she was not hired
for a certified nursing assistant (CNA) position at the agency.
BACKGROUND
Complainant, a former employee of the agency, filed a formal complaint on
July 18, 1997, in which she alleged reprisal discrimination. The agency
accepted the complaint for processing and, after complainant failed to
request a hearing, issued a final decision finding no discrimination.
This appeal followed.
The evidence contained within the investigative file reveals that the
complainant was employed as a nursing home CNA at the agency. She worked
at the agency from 1989 until 1994. In 1993, the agency charged her with
patient abuse, and she filed an EEO complaint alleging discrimination.
The complainant and the agency settled in 1995.
Since 1994, the complainant has worked as a CNA in nursing homes
in the private sector. Beginning March 1997, she applied at least
three times for a CNA position at the Bay Pines, Florida facility.
Complainant alleged that she was reinstatement eligible for employment
with the agency. On several occasions, the complainant contacted the
Human Resources office of the facility and inquired about her application.
Finally, on May 9, 1997, she received a letter from the agency that she
was qualified but not selected for a position.
The FAD concluded that the complainant had not established a prima
facie case of reprisal discrimination because she did not prove that
she engaged in prior EEO activity, that the nurse managers were aware
of such activity, and that a causal connection existed between the prior
EEO activity and her non-selection. The agency requests that we affirm
its FAD.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, a complainant bears
the burden to establish a prima facie case of reprisal. The Commission
has set forth the criteria for reprisal cases, as follows:
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) she engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) she was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link . . . The causal connection may be shown by evidence that
the adverse action followed the protected activity within such a period
of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted).
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that complainant failed to establish a
prima facie case of reprisal discrimination because she did not satisfy
the fourth requirement of the prima facie case.
In 1993, the complainant did engage in protected EEO activity. She filed
a discrimination claim, Agency Case No. 93-1962, against the agency's
Tampa Bay Facility. This claim was processed and was resolved in 1995.
The complainant acknowledged this prior EEO activity and settlement on
page 4 of her SF- 171 application form to the agency's Bay Pines Facility.
She provided the information in response to questions #38 and #45 on
the application. These questions requested that complainant give an
explanation about her leaving her agency job in 1994. The completed
applications were distributed by the personnel clerk to the individual
nurse managers.
Accordingly, the Commission finds that the complainant engaged in
protected EEO activity and that the nurse managers knew or should have
known that she participated in such activity. However, the complainant
did not prove a causal relationship between her participation in EEO
activity in 1993 and her non-selection in 1997.
The causal connection may be shown by evidence that the adverse action
followed the protected activity within such a period of time and in such
a manner that a reprisal motive is inferred. Grant v. Bethlehem Steel
Corp., 622 F.2d 43 (2nd Cir. 1980). "Generally, the Commission has held
that a nexus may be established if events occurred within one year of
each other." Patton v. Department of the Navy, EEOC Request No. 05950124
(June 27, 1996). In this case, over four years had passed since the
complainant filed the discrimination complaint, and over two years had
passed since the complaint was settled. The Commission finds that the
prior EEO activity was too remote in time to be connected to the 1997
non-selection of the complainant.
Furthermore, the Commission finds that the agency's reasons not to select
the complainant for a CNA position did not demonstrate reprisal against
her. The nurse managers, who were responsible for hiring in the different
units, affirmed that the complainant was not hired for several reasons.
These reasons included the following: not having any CNA vacancies,
not receiving her application at all, not receiving her application
until after the final selections for vacancies were made, having a
preference to hire CNA transfers from within the agency, needing CNA
applicants with acute care experience, and hiring directly from the
Human Resources registry.
Since the Commission cannot infer a reprisal motive from these reasons
or the record as a whole, we find that the complainant has failed to
prove by a preponderance of the evidence that discrimination occurred.
CONCLUSION
Therefore, after a careful review of the record, we AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
02/11/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ __________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.