Hazel N. Clark, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 10, 1999
01973996 (E.E.O.C. Sep. 10, 1999)

01973996

09-10-1999

Hazel N. Clark, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Hazel N. Clark v. Department of Veterans Affairs

01973996

September 10, 1999

Hazel N. Clark, )

Appellant, )

) Appeal No. 01973996

v. ) Agency No. 96-0156

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

________________________________)

DECISION

On April 17, 1997, Hazel N. Clark (hereinafter referred to as appellant)

initiated an appeal to the Equal Employment Opportunity Commission

(Commission) from a final decision of the agency concerning her complaint

of discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq. The final agency decision

was received by appellant on March 24, 1997. Accordingly, the appeal

is timely, and is accepted in accordance with the provisions of EEOC

Order No. 960, as amended.

The issue on appeal is whether appellant proved, by a preponderance of

the evidence, that she was discriminated against on the bases of her race

(African-American), color (black), and in reprisal for prior EEO activity

when she received a "highly satisfactory" performance appraisal for the

period ending May 10, 1995.

Appellant filed a formal EEO complaint in August 1995, raising the

above-referenced allegation of discrimination. The agency accepted

appellant's complaint for processing, and conducted an investigation.

Thereafter, the agency provided appellant with a copy of the investigative

report, and notified her of her right to either an administrative hearing

or a final agency decision in the matter. Appellant failed to timely

respond to the notice, and the agency issued a final decision dated March

13, 1997, finding that appellant had not been subjected to discrimination

or reprisal. It is from this decision that appellant now appeals.

A review of the record reveals that appellant, a Dental Hygienist,

initially received a rating of "Fully Satisfactory" for the period

from April 1994 through May 1995. The Chief of Dental Services (Chief)

increased appellant's rating to "Highly Satisfactory." Appellant stated

that she and the EEO Counselor met with her Supervisor and the Chief

several times after she received her prior rating to discuss what she

would need to do in order to receive a rating of "Outstanding." Appellant

stated that she was repeatedly told that her performance was fine and was

never told she would not receive the higher rating. Appellant stated

that the other Hygienist (white; Comparative) does less work and has

less experience, yet received an "Outstanding" performance rating.

Both appellant's Supervisor and the Chief stated that appellant did not

see enough patients each day to justify a higher rating. Appellant's

Supervisor noted that, through an agreement with the union, appellant

was to see 5 patients each day. Appellant, however, saw an average of

3.1 patients per day, the same number she saw during the previous rating

period. While the Chief acknowledged that appellant saw approximately

21% more patients than she had previously, he attributed the increase to

the fact that appellant used less leave during the current rating period.

The record reveals that the Comparative saw 4.84 patients per day during

the period in question. Appellant's Supervisor stated that both appellant

and the Comparative had "no shows," but that the Comparative asked to

work on additional patients to fill those appointments. The Chief stated

that while appellant was making a greater effort to fill appointments

which were canceled during the time she was meeting with management and

the EEO Counselor, she stopped doing so after two months.

Appellant's complaint presents the issue of whether the agency subjected

her to disparate treatment on the bases of her race, color, and prior

EEO 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. These same standards apply

to complaints of reprisal. See Burrus v. United Telephone of Kansas,

Inc., 683 F.2d 339 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

First, appellant 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 appellant's prima facie case by

articulating legitimate, nondiscriminatory reasons for its action, and

if the agency does so, appellant 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. In appropriate circumstances, when 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 preponderant 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). Given that the agency

acknowledged, in its final decision, that appellant established a prima

facie case of discrimination and reprisal, we will proceed with this

analysis.

The agency stated that appellant did not see a sufficient number of

patients each day to justify a higher rating. Specifically, while the

agreement with the union specified that appellant would see 5 patients,

appellant saw, on average, only 3.1. Appellant asserted that she had been

advised that her performance was fine; however, appellant acknowledged

that she was also told she needed to increase her patient load. The EEO

Counselor confirmed that the Chief and appellant's supervisor expressed

concerns regarding the number of patients appellant was seeing after

her previous rating. While the EEO Counselor and one of appellant's

co-workers opined that there was no significant difference in the number

of patients seen by appellant and the number seen by the Comparative,

the record reveals that the comparative saw 1.7 more patients per day,

on average, than did appellant. Further, there is no evidence that either

appellant's co-worker or the EEO Counselor was in a position to evaluate

her performance as well as her Supervisor and the Chief. Appellant has

not shown that her evaluation was undeserved based upon her performance.

Therefore, the Commission finds that appellant failed to prove, by a

preponderance of the evidence, that she was subjected to race, color,

and reprisal discrimination with regard to her performance rating.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it is

the decision of the Commission to affirm the agency's final decision of

no discrimination based on race, color, and reprisal.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

September 10, 1999

DATE Carlton M. Hadden

Acting Director

Office of Federal Operations