01991193
05-30-2000
Jane K. Lewis, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Jane K. Lewis v. Department of Veterans Affairs
01991193
May 30, 2000
Jane K. Lewis, )
Complainant, )
)
v. )
) Appeal No. 01991193
Togo D. West, Jr., ) Agency No. 97-1680
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
INTRODUCTION
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 reprisal for having engaged in EEO related activity in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. 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).<1> For the reasons set forth below, we AFFIRM the FAD.
ISSUE PRESENTED
The issue presented is whether complainant proved that she was
discriminated against, as referenced above, when, from June to October
of 1996, she was not given equal consideration for overtime pay and
cross training.<2>
BACKGROUND
Complainant filed a formal complaint in December 1996. Following an
investigation, she was provided with a copy of the investigative file and
notified of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant initially requested a hearing, but withdrew
the request. Accordingly, the AJ remanded the complaint file to the
agency for a final decision. The agency found that complainant had
not been discriminated against based on reprisal. It is from this
decision that complainant now appeals. Complainant did not offer any
new contentions on appeal.
At the time her complaint was filed, complainant was an Accounts
Receivable Assistant at the agency's Medical Center in Pittsburgh,
Pennsylvania. She alleged that she requested overtime and cross-training
both verbally and by e-mail from her supervisor, A-1, Associate Chief,
Medical Administration Service for Financial Affairs. According to
complainant, A-1 did not respond to her requests. She maintained,
however, that other employees in her department were granted overtime
and training. Complainant discussed the matter with A-1's supervisor,
A-2, the Chief, Medical Administration Service. Complainant stated that
A-2, however, refused to do anything about either issue.
Complainant's prior EEO activity occurred in September 1991 when she
made a request to have her hours changed due to a physical accommodation
issue. A-1 testified that, although she was aware of complainant's
accommodation request, she was unaware that complainant had contacted an
EEO counselor. A-1 testified that none of the employees in complainant's
section were given overtime because they were not trained to perform the
duties of a "biller."<3> According to A-1, overtime was only offered
to those employees who were in the inpatient billing section because
this is where there was a backlog of work. Since there was no need for
overtime work in the accounts receivable area, complainant's overtime
request was denied.
With respect to complainant's request for training, A-1 acknowledged
denying complainant's request to be trained as a "biller." According to
A-1, she told complainant that "if I train you I need to train others,
the other accounts receivable people." A-1 stated that she did agree
to provide complainant with an "overview" so that she would understand
what "billers"did. A-1 noted that her denial of complainant's in-depth
training request had nothing to do with her prior EEO activity.
C-1, Program Assistant, was a co-worker of complainant. He implied that
A-1did not provide overtime or cross-training to complainant because of
her prior EEO activity. C-1, however, was unable to provide any specific
verbal statements or other examples that would support a finding that
complainant's prior EEO activity played a role here.
C-2, a Registered Nurse who was a co-worker, testified that A-1 told him
that complainant was denied overtime and training because she "worked
in an entirely different setting and . . . wasn't doing the inpatient
billing which was needed, which the overtime was allocated for. She was
in accounts receivable, and stated [complainant] wasn't really trained
to do inpatient billing."
ANALYSIS AND FINDINGS
A prima facie case of reprisal is established by showing that: (1) an
employee engaged in protected EEO related activity; (2) the employer
was aware of the protected activity; (3) the employee was subsequently
subjected to adverse treatment; and (4) the adverse action followed
the protected activity within such a period of time that retaliatory
motivation may be inferred. Manoharan v. Columbia University College of
Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould,
808 F.2d 493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783,
790, (D.C. Cir. 1984). For purposes of this decision, we will assume that
complainant established a prima facie case of reprisal discrimination.
We find, however, that the agency articulated legitimate,
nondiscriminatory reasons for why complainant was denied overtime and
cross training. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed, 545 F.2d 222 (1st
Cir. 1976)(applying the standard to retaliation cases). We further find
that complainant has not established pretext on the agency's part. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Complainant did not establish that the reasons articulated by A-1 were
not true, nor has she established that A-1's actions were motivated by
a desire to retaliate because she engaged in prior EEO activity.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision.
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:
_05-30-00________ __________________________________
DATE Carlton M. 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:
_____________________ _________________________________
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.
2Complainant also maintained that her performance appraisal rating, in
March 1997, should have taken into consideration the large volume of
overtime work given to other employees. This issue was not addressed by
the agency, after complainant indicated that it was no longer a concern
because she had received an outstanding rating.
3Inpatient Billing employees whose primary duties involve billing
non-agency professionals for services provided by the Pittsburgh VA
Medical Center.