01a04570
11-02-2000
Hazel N. Clark, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Hazel N. Clark v. Department of Veterans Affairs
01A04570
November 2, 2000
.
Hazel N. Clark,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04570
Agency No. 98-3512
DECISION
Hazel N. Clark (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged that
she was discriminated against on the bases of race (African-American)
and reprisal for prior EEO activity when:
(1) she was denied a grade increase on March 13, 1998;
the agency failed to convert her position to Title 38 status, following
her 1990 reinstatement.
The record reveals that during the relevant time, complainant was
employed as a Dental Hygienist, GS-7, at the agency's St. Louis,
Missouri facility. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on March 25, 1998. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge or, alternatively, to receive a final decision
by the agency. When complainant failed to respond within the requisite
regulatory time period, the agency issued a final decision.<2>
In its FAD, the agency concluded that while complainant established a
prima facie case of reprisal, she failed to establish a prima facie case
of race discrimination. Specifically, the agency noted that complainant
failed to establish that similarly situated employees outside her race
were treated more favorably, as the white comparators named by complainant
had greater experience than she in the relevant areas and thus were
not similarly situated. The agency also noted that complainant was
reinstated to the GS-7 position pursuant to an EEOC Order. See Clark
v. Department of Veterans Affairs, EEOC Appeal No. 01902463 (September
20, 1990) (reinstating complainant to the GS-7 Dental Hygienist position
from which she was terminated in 1987 due to race discrimination).
The agency stated that, even assuming complainant established a prima
facie case of discrimination on both bases, it articulated a legitimate
non-discriminatory reason, namely, that complainant did not have the
qualifications to be upgraded to a higher-paying position. The agency
concluded that complainant failed to establish that this explanation
was a pretext for discrimination.
Complainant raises no contentions on appeal. The agency requests that
we affirm its FAD.
FINDINGS AND ANALYSIS
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission agrees with the agency that complainant failed to prove
by a preponderance of the evidence that she was subjected to race
discrimination or reprisal.
Even assuming complainant established a prima facie case of race and
reprisal discrimination, she failed to establish that the agency's
articulated explanation for its actions was a pretext for discrimination.
The agency states that an upgrade to the GS-8 position required
independent practice, often associated with teaching dental hygienist
students. The agency noted that a dentist was always available to oversee
complainant's work and that complainant did not teach dental hygienist
students. While one of the white hygienists named by complainant as a
comparator was a GS-8 when she worked at the facility (C8), this hygienist
had advanced training in periodontics and taught dental hygienist students
at a local college. Complainant acknowledged in her affidavit that a
dentist was present when she worked, and either devised the treatment
plan for each patient before she saw them, or reviewed her work when
she was finished. Complainant also noted that she did not teach dental
hygienist students at present, but argued that the agency was using
the fact that it no longer rotated students through the facility as an
excuse not to promote her. However, complainant presented no evidence to
indicate that the agency's explanation is a pretext for discrimination.
Accordingly, the agency's finding of no discrimination as to claim 1
was proper and is AFFIRMED.
The agency did not address claim 2 independently, instead offering
a joint explanation as to the actions alleged in claims 1 and 2.
As such, the agency noted that complainant was not converted to a
Title 38 position after her reinstatement because she was reinstated
to the position from which she had been terminated, pursuant to an EEOC
order. This position was a GS-7 Hygienist position not targeted for a
GS-8 upgrade. Furthermore, a review of the record indicates that the
comparators named by complainant were hired under different circumstances
than she. Specifically, in April 1990, the Chief of Dental Service
informed the agency that the Service was having trouble hiring qualified
dental hygienists due to competition from higher-paying private sector
positions. The Chief requested that the Service be given permission to
offer applicants higher salaries, indicating that without this ability,
the Service would be unable to hire any new hygienists. Thereafter, the
Dental Service was given permission to offer applicants GS-8 positions,
as well as to offer individual applicants higher-paying positions under
the authority of Title 38. Both comparators named by complainant, a
GS-8 (C8) and a GS-7, Step 10 (C7), were hired after this new policy was
implemented. The rules under which these higher-paying positions were
offered clearly indicates that such positions were not to be offered to
current employees except in limited circumstances, such as if an employee
was reassigned to a new position. A few months after this policy change,
the EEOC ordered the agency to reinstate complainant to the position
from which she was terminated, a GS-7, Step 8 position.<3> In sum,
the agency did not convert complainant to a Title 38 position because
the Dental Service received permission to offer these higher-paying
positions to new applicants in order to compete with the private sector.
Complainant was not a new appointment, but rather was reinstated to her
previous position pursuant to an EEOC order.
Complainant failed to establish that this explanation is a pretext for
race discrimination or reprisal. Accordingly, the agency's finding of
no discrimination as to claim 2 was proper and is AFFIRMED.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically mentioned in this decision, we find that
the agency's finding of no discrimination was proper and hereby AFFIRM
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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, Director
Office of Federal Operations
November 2, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
_____________________________
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record establishes that the agency initially framed claim 2 as
two separate claims and dismissed both for failure to state a claim,
while accepting claim 1 for investigation. Complainant appealed the
agency's dismissal to this Commission and, on October 13, 1999, the
Commission reframed the claims and reversed the dismissal. See Clark
v. Department of Veterans Affairs, EEOC Appeal No. 01991425 (October
13, 1999) Meanwhile, the agency had issued a final decision finding
no discrimination on claim 1 on September 30, 1999. After receiving
the remanded claim, the agency rescinded the September 30, 1999 FAD and
issued a new FAD on December 16, 1999, addressing claims 1 and 2 as framed
above. It is from this FAD that complainant now appeals. In issuing this
second FAD, the agency failed to comply with the Commission's order to
first inform complainant of her right to request a hearing. While we
admonish the agency for this omission, we note that complainant neither
requested a hearing after the original investigation, nor raised this
issue on appeal. Under these circumstances, we decline to remand the
case for further processing.
3 GS-7, Step 8 is the grade and step level complainant held at the time
she filed the subject complaint. It is unclear whether or not she was
initially reinstated in 1990 to a lower step and subsequently reached
Step 8.