Emma Patrick, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 5, 2000
01983880 (E.E.O.C. Jan. 5, 2000)

01983880

01-05-2000

Emma Patrick, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Emma Patrick v. Department of Veterans Affairs

01983880

January 5, 2000

Emma Patrick, )

Complainant, )

)

) Appeal No. 01983880

) Agency No. 96-2104

) Hearing No. 310-97-5283X

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, )

Agency. )

)

DECISION

Emma Patrick (complainant) timely initiated an appeal to the Equal

Employment Opportunity Commission (EEOC) from the final decision of the

agency concerning complainant's claim that the agency violated Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

The appeal is accepted in accordance with EEOC Order No. 960, as amended.

The issue on appeal is whether the agency discriminated against

complainant on the bases of race (African-American) or reprisal (prior

EEO activity) when, on or about June 5, 1996, she was not promoted to

Nurse III.

Complainant filed a formal EEO complaint raising the issue stated above.

All of the procedural prerequisites were met prior to complainant's

request for a hearing before an EEOC administrative judge (AJ).

Following the hearing, the AJ issued a recommended decision (RD) which

found no discrimination. Thereafter, the agency issued its final agency

decision (FAD) which adopted the AJ's RD. Complainant now appeals

the FAD.

The AJ found that complainant failed to establish a prima facie case of

race discrimination because she did not show that similarly-situated,

non-African-American individual(s) were treated more favorably than

she was with regard to the promotion. The AJ found that complainant

established a prima facie case of reprisal discrimination primarily

because the chairperson of the reviewing panel was aware of complainant's

prior EEO activity.

The AJ also found that the agency articulated a legitimate,

nondiscriminatory reason for its actions. In this regard, the AJ

concluded that the reviewing officials were consistent in their testimony

that complainant and her supervisor did not submit information showing

that complainant met the necessary standards for the position.

Finally, the AJ found that complainant did not prove pretext. Complainant

argued that her creation of chemotherapy classes for patient education

should have been considered by the reviewing officials. However,

the AJ noted that at the time of complainant's application for the

promotion, she had not yet finalized the approval of the program.

Regarding complainant's efforts which resulted in yellow arm bands being

worn by blind patients, the AJ noted that the program was not put in

place until more than a year after the reviewing officials considered

complainant's qualifications for the promotion. The AJ also rejected

complainant's arguments that her credentials were comparative to or

better than other applicants' credentials. The AJ concluded that the

agency's arguments in this regard were more persuasive.

On appeal, complainant reiterates that she was equally or better

qualified than the selectees. Complainant also notes that she has done

more volunteer activity than any other selectee.

Pursuant to 64 Fed. Reg. 37,659 (1999) (to be codified at 29 C.F.R. �

1614.405(a)), all post-hearing factual findings by an Administrative

Judge will be upheld if supported by substantial evidence in the

record. Substantial evidence is defined as "such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion."

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

The Commission has reviewed the record consisting of the investigative

report and exhibits, the hearing transcript, the RD, and the FAD, and

complainant's contentions on appeal. The Commission concludes that

the AJ correctly determined that complainant did not establish, by a

preponderance of the evidence, that the agency discriminated against

her as claimed. Complainant did not submit evidence which showed that

the stated opinions of the reviewing officials were unworthy of belief

or were suspect. Accordingly, the Commission hereby affirms the AJ's

and the agency's conclusion that complainant failed to prove her claim

of race and reprisal discrimination.

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:

Jan 5, 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: