01974390
02-01-2000
Dora A. Burke, Complainant, v. Togo D. West, Jr. Secretary, Department of Veterans Affairs, Agency
Dora A. Burke v. Department of Veterans Affairs
01974390
February 1, 2000
Dora A. Burke, )
Complainant, )
) Appeal No. 01974390
v. ) Agency No. 96-0950
)
Togo D. West, Jr. )
Secretary, )
Department of Veterans Affairs, )
Agency )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision 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. <1>
Accordingly, the appeal is accepted in accordance with EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of race (Black), color (dark brown) and reprisal
(prior EEO activity) when her supervisor (the Supervisor) increased her
workload and harassed her.
BACKGROUND
Complainant, a GS-11 renal dietician at the Brooklyn Veterans
Administration Medical Center, filed a formal complaint on February 27,
1996, claiming discrimination and harassment when her Supervisor assigned
her additional duties on March 14, 1995, and during October and November
1995; she was rated as "Fully Successful" on her October 1995, appraisal
for the element Patient Education and Cooperation and Organizational
Support; a white dietician referred to her with profanity in an e-mail;
a guest speaker at a training session made a derogatory remark about
Blacks; on January 2, 1996, her Supervisor gave her a patient assessment
performed by a white dietician and asked her to put it in the patient's
file; and she did not receive a new printer and furniture for her office.
The Supervisor averred in her affidavit that complainant's increased
workload was due to a relief coverage pattern in which all GS-11
dieticians covered for all other dieticians on leave. Complainant's
second level supervisor (the Chief), also attested to the relief coverage
pattern, as did three other dieticians who averred that they each,
at times, covered for complainant when she was on leave. The Chief
asserted that workloads had increased for all of the dieticians due to
budget restrictions.
The Supervisor averred that she rated complainant as"Fully Successful" on
the Patient Education and Cooperation and Organizational Support element
because she found that complainant's descriptions of patient education was
general rather than specific to each patient. The Supervisor asserted
that complainant's assessment for each patient looked identical and
lacked any specificity.
The Supervisor averred that on January 2, 1996, complainant returned
to the office after being on leave, that another dietician performed
an assessment on one of complainant's patients during her absence, and
that she asked complainant to file the assessment in the patient's chart.
The Supervisor averred that she asked complainant to file the assessment
because she and the co-worker wanted to ensure that complainant was
aware of the information it contained.
The Supervisor and Chief both asserted that a new printer was delivered
to complainant's seven co-workers, who shared an open office, rather
than to complainant who had a private office, because they believed this
was more equitable. They averred that complainant had a printer on her
desk but would not allow the co-workers to go in and out of her office.
They each stated that the co-workers were sharing one printer.
The Supervisor, Chief and co-workers each averred that a speaker at
a training seminar on research used remarks about Blacks which were
derogatory if taken out of context.<2> Complainant, in her affidavit,
stated that she attended the training session because it was mandatory,
but was not listening to the speaker because he was white, until she
heard the derogatory remark.
Three co-workers, in their affidavits, each averred that complainant
was difficult to work with, that complainant was often rude and
uncooperative with them when they asked questions,<3> and that they
primarily communicated with her through e-mail when they requested or
shared information on patients. One co-worker averred that she felt
provoked by complainant's rudeness when she used profanity to respond
to complainant. The Chief and Supervisor both counseled the co-worker
for her unprofessional act.
The agency issued a final decision dated April 25, 1997, in which it
found that the agency stated legitimate, non-discriminatory reasons for
its actions and that complainant failed to prove that those reasons were
a pretext for discrimination. In her appeal, complainant states that
the investigative file contains false information.
FINDINGS AND ANALYSIS
Complainant's claims present the issue of whether the agency subjected her
to disparate treatment on the bases of race, color and prior protected
activity. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides
an analytical framework for proving employment discrimination in cases in
which disparate treatment is alleged. First, complainant must establish
a prima facie case by presenting enough evidence to raise an inference
of discrimination. McDonnell Douglas, supra, at 802. The agency may
rebut complainant's prima facie case by articulating legitimate,
nondiscriminatory reasons for its action, and if the agency does so,
complainant must show, by a preponderance of the evidence, that the
agency's reasons are a pretext for discrimination. Id.
The Commission notes that the McDonnell Douglas analysis need not be
adhered to in all cases. Where the agency has established legitimate,
nondiscriminatory reasons for its employment decision, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, that is, whether the complainant has proven by a
preponderance of evidence that the agency's explanations were a pretext
for actions motivated by prohibited discriminatory animus. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for each action. Complainant's workload
increase was part of an established pattern to cover the absences of
her co-workers. Her appraisal rating was lowered to Fully Successful
because she used general rather than individualized descriptions for
each patient. A new printer was shared between seven employees rather
than one employee. The Supervisor requested that complainant file a
patient assessment performed by a co-worker to ensure that she was aware
of the information therein.
The Commission finds that the speaker's statements were not derogatory
to Blacks when taken in context. The Commission also finds that
the co-worker's use of profanity to complainant was not motivated by
discrimination but by a dislike for complainant's rude and uncooperative
manner. We further find that complainant failed to show that the
agency's stated reasons were a pretext for prohibited discrimination
based on race and color.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that she engaged in
protected activity, e.g., participated in a Title VII proceeding; 2)
that the alleged discriminating official was aware of the protected
activity; 3) that she was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and 4)
that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Complainant averred that she engaged in protected activity when she
filed an EEO complaint in 1993.<4> The Supervisor and Chief, although
not involved, were both aware of the complaint. The record contains no
information, however, on the date of disposition of that complaint. Thus,
for purposes of this analysis, we will assume complainant established
a causal connection based on closeness in time.
Assuming arguendo that complainant established a prima facie
case of reprisal discrimination, the agency articulated legitimate,
nondiscriminatory reasons for each action, that is, an established relief
coverage pattern causing periodic increased workloads, complainant's
lack of specificity in her assessment resulting in a Fully Successful
rating, efficient use of a printer between seven employees rather than one
employee, and a request to file an assessment to ensure that complainant
was aware of the information gained in her absence. Complainant fails
to show that the stated reasons were pretextual. In addition, the
Commission finds that the agency's articulated description of the guest
speaker's remarks and the co-worker's use of profanity support a finding
that neither were based on discrimination. Thus, the Commission finds
that the agency did not discriminate against complainant on the bases
of race, color or reprisal.
Accordingly, the decision of the agency was proper and is AFFIRMED.
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
Feb 1, 2000
________________________ _______________________
DATE Carlton 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
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.
2 The speaker gave examples of stereotyping that whites are smarter than
Blacks, that Jews are cheap, and that redheads are smarter than blondes.
3 The co-workers averred that complainant replied, "Why are you bothering
me," "Don't waste my time," and "Go look in the chart yourself," when
they asked questions.
4 Complainant stated that she filed a complaint against a guard after
he questioned her as she entered the building one day.