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.