Keith K. Bell, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01986360 (E.E.O.C. Mar. 24, 2000)

01986360

03-24-2000

Keith K. Bell, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Keith K. Bell v. Department of Veterans Affairs

01986360

March 24, 2000

Keith K. Bell, )

Complainant, )

)

v. )

) Appeal No. 01986360

Togo D. West, Jr., ) Agency No. 97-1325

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 his allegation that the agency discriminated against him

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 he was

discriminated against, as referenced above, when, on March 21, 1997,

he was issued a Letter of Counseling.

BACKGROUND

Complainant filed his formal complaint on April 16, 1997. Following an

investigation, he was provided with a copy of the investigative file and

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

Judge (AJ). After complainant failed to request a hearing, the

agency issued a final decision on July 14, 1998. The agency found that

complainant had not been subjected to discrimination based on reprisal.

It is from this decision that complainant now appeals. Complainant did

not offer any new contentions on appeal.

At the time his complaint was filed, complainant was a Medical

Administration Specialist, GS-9, at the agency's Medical Center

in St. Louis, Missouri. He was one of four employees who served as

Administrative Officers of the Day (AOD). AODs provided administrative

support for patient care after normal working hours, supported the

clinical function, and facilitated actions necessary for patient care.

AODs viewed themselves as having Director like authority after hours.

Prior to a reorganization in 1996, complainant and all other AODs worked

for the Medical Administration Service (MAS). After the reorganization,

the Medical Center was comprised of four Patient Organized Departments

(PODs) each directed by a physician. The MAS was disbanded and its

components were distributed among the PODs.

On September 30, 1996, A-1, a registered nurse, was laterally reassigned

to supervise all of the AODs. According to the record, complainant,

and the other AODs, resented A-1 being their supervisor because he was

a nurse. On January 11, 1997, C-1, who was also a registered nurse, wrote

to A-1 complaining about complainant's refusal to arrange transportation

for three patients. According to C-1, complainant refused to authorize

travel because the patient destinations were "too far." He reportedly

also told C-2, a registered nurse, to resubmit his travel requests to

another AOD. C-1 further wrote that she overheard complainant refuse to

assist a telephone caller who had requested patient transportation and

heard that he had also refused to assist a physician who was attempting

to transport a patient.

On February 10, 1997, C-3, a registered nurse, wrote to A-2, Acting Nurse

Executive, stating that on February 4, 1997, she received a "frantic"

telephone call from a nurse who was trying to place a patient in the

Medical Center's Nursing Home (Nursing Home). The nurse stated that

when she asked the complainant for assistance he was hostile and told

her that he would not call or send the patient to the Nursing Home.

The nurse wrote "how can I do my job in the best way possible in the face

of such opposition that I encountered from [the complainant]." Finally,

the nurse indicated that this was the second time that complainant

refused to help her in an emergency situation.

On March 12, 1997, complainant and a co-worker, D-1, filed formal

complaints against the agency alleging that they were discriminated

against on the basis of race when A-1's position was filled by

reassignment, rather than competitively.

On March 13, 1997, A-2 testified that she received a telephone call

from Nursing Supervisor, B-1, and B-2, a nurse. A-2 was informed that

there was a patient who had been evaluated in the Emergency Room and

who did not meet the criteria for admission at the Medical Center.

Therefore, a physician arranged to have the patient admitted to the

Nursing Home, but complainant refused to arrange transportation.<2>

A-2 testified that she spoke to complainant on the telephone about

the matter. Complainant told her that there were beds available at

the Medical Center. A-2 reminded complainant that patient placement

was not his decision, but a clinical decision for the medical staff.

According to A-2, complainant stated "you guys find him a bed and get

him out of here because I'm not going to do it." A-2 testified that

she asked complainant to put the interest of the patient first, but

that he still refused. After A-2 warned complainant that he was being

insubordinate, he told her that he stood by his principles and that the

nursing staff could not tell him what to do.

A-1 testified that he was not on duty on March 13, 1997. When he

learned of the incident, he interviewed the parties and determined that

complainant had "flatly and repeatedly" refused to provide assistance.

After consulting A-2 and A-3, Director of Primary Care, he decided to

counsel complainant in writing. On March 21, 1997, A-1 gave complainant

a Letter of Counseling. A-1 noted the fact that he had spoken to

complainant previously about similar incidents.

A-2 stated that she was not aware of complainant's EEO complaint at the

time of the March 13 incident, but A-1 indicated that he was aware that

complainant had initiated an EEO complaint. He was not aware of the

specifics of the complaint.

Complainant acknowledged resenting A-1's reassignment as the supervisor

for the AODs. He testified that during a meeting he even told A-1

that it was "wrong" for him to be the AOD supervisor. With respect to

the March 13 incident, complainant stated that he refused to arrange

transportation for the patient because he did not meet the medical

criteria for transportation. Complainant acknowledged that he did not

explain his reasoning to A-2.

D-1 testified that her decisions as an AOD were overruled, on several

occasions, by the Nursing Service. She felt that the Nursing Service

would not "take the word" of AODs and often went over their heads.

She felt that A-1's attitude towards the complainant did not change

after the complainant initiated his EEO complaint. According to her,

A-1 acted inappropriately towards all the AODs since he was reassigned

in September 1996.

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). Like the agency, we find that complainant has

established a prima facie case of reprisal discrimination. We note in

this regard that A-1 was aware of complainant's EEO activity when he

issued the Letter of Counseling on March 21, 1997.

The agency, however, articulated a legitimate, nondiscriminatory

reason for why complainant was issued the letter. 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). The record indicates that complainant received

the Letter of Counseling after having been orally counseled, on two

prior occasions about the same matters, by A-1. There is no persuasive

evidence that A-1's actions were motivated by a desire to retaliate

against complainant because he had filed an EEO complaint. We note in

this regard D-1's testimony that A-1's attitude towards the complainant

and the other AODs was always inappropriate and did not change after

the complaint was initiated. Because we discern no tangible difference

in A-1's treatment of complainant after the complaint was filed, we are

unable to find any discriminatory animus.

CONCLUSION

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

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 24, 2000

______________ __________________________________

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.

2After being refused by the complainant, the nurses sought assistance

from another AOD, D-1, but she also refused. According to the record,

D-1 maintained that she would only arrange transportation if ordered to

do so by A-1. The nurses were unable to reach A-1.