Gail S. Archbell, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01a03443 (E.E.O.C. Jul. 27, 2000)

01a03443

07-27-2000

Gail S. Archbell, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Gail S. Archbell v. Department of Veterans Affairs

01A03443

07-27-00

.

Gail S. Archbell,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A03443

Agency No. 98-1800

Hearing No. 140-99-8218X

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (the Commission) from the final agency decision (FAD)

concerning her allegation that the agency discriminated against her

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 by the Commission

in accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

at 29 C.F.R. � 1614.405). For the reasons set forth below, we AFFIRM

the agency's final action.

ISSUE PRESENTED

The issue presented is whether complainant proved that she was

discriminated against because of her race (Caucasian) when her training

and duties were changed on March 31, 1998.

BACKGROUND

Complainant filed a formal complaint on June 19, 1998. Following an

investigation, she was provided a copy of the investigative file and

notified of her right to request a hearing before an EEOC Administrative

Judge (AJ). Complainant requested a hearing, but the AJ, in granting

a motion by the agency, decided that a decision without a hearing would

be appropriate. On January 24, 2000, the AJ issued a decision finding

that complainant had not been discriminated against. The AJ found that

complainant failed to establish a prima facie case of discrimination

based on race because she did not demonstrate that she was subjected to

less favorable treatment than a similarly situated employee outside of

her race. Moreover, the AJ found that complainant did not present any

persuasive evidence to support the conclusion that the agency's actions

were based on race. On March 7, 2000, the agency issued a Notice of

Final Action that implemented the decision of the AJ. It is from this

decision that complainant now appeals.

At the time of her complaint, the complainant was employed as a Registered

Diagnostic Radiologic Technologist, GS-7, at the agency's Medical

Center in Fayetteville, North Carolina. On January 9, 1998, complainant

applied to attend a class that was necessary for her certification. A-1,

her supervisor, approved complainant's application. Complainant and a

co-worker, C-1 (Caucasian), were scheduled to attend the class on March

31, 1998. On the day of the class, C-1 was unable to attend because

she had to see doctor,<2> and complainant was informed by A-2 (Black),

the Acting Supervisor, that, due to a staff shortage, she could not

attend the class. During the investigation, complainant, when asked why

she felt her race played a role in the decision to cancel her training,

testified, �Well, I'm white and she's black. And she's never refused

anything, never. And people are scared of her around here. I don't

know what it is. I guess they think because she is black, she'll file

[a] discrimination [complaint] or whatever.�

A-2 testified that, because of a high turnover of staff during the

preceding months, there was a �critical� shortage of personnel the week

before complainant's class. Although she tried to find a way to allow

complainant to attend the class, on the day in question, they �had an

extremely heavy day.� According to A-2, A-3, the Chief of Radiology,

assessed the situation and decided that it would be impossible for both

complainant and C-1 to attend the training. A-2 stated that there was a

discussion about the possibility of sending either C-1 or complainant to

the class, but not both. However, once it was determined that C-1 had

to leave in order to see a doctor, the decision was made, by A-3, that

complainant's training would have to be cancelled. According to A-2,

A-3 (Caucasian) made the decision to cancel complainant's training,

not her. A-3, in a memorandum, confirmed A-2's testimony that he

cancelled complainant's training because of a staff shortage.

ANALYSIS AND FINDINGS

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

action because the Administrative Judge's issuance of a decision without

a hearing was appropriate and a preponderance of the record evidence

does not establish that discrimination occurred.<3>

CONCLUSION

Accordingly, it is the decision of the Commission to AFFIRM the agency's

final action.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

__07-27-00____________________________

Date

1On 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.

2On the morning of the class, C-1 informed management that she might

be pregnant. Due to nature of her position, C-1 had to be counseled

about �the pregnancy protocol� and tested by a doctor.

3The AJ erred in concluding that complainant did not establish a prima

facie case of discrimination merely because she did not identify

similarly situated co-workers, who were of a different race, who

were treated in a more favorable manner. To establish a prima facie

case, complainant need only present evidence which, if unrebutted,

would support an inference that the agency's actions resulted from

discrimination based on her race. Furnco Construction Co. v. Waters,

438 U.S. 567, 576 (1978). It is not necessary for complainant to show

that a comparative individual, from outside of her protected group,

was treated differently. O'Connor v. Consolidated Coin Caterers Corp.,

517 U.S. 308 (1996); Enforcement Guidance on O'Connor v. Consolidated

Coin Caters Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996),

located at www.eeoc.gov; Carson v. Bethlehem Steel Corp., 82 F.3d

157, 159 (7th Cir. 1996). We note, however, that the agency provided

legitimate, non-discriminatory reasons for management's decision to

cancel complainant's training on March 31, 1998. Because complainant

did not establish pretext, we find that the AJ's error was harmless.