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.