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: