01990451
03-22-2000
Mary K. Begay, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Mary K. Begay v. Department of Veterans Affairs
01990451
March 22, 2000
Mary K. Begay, )
Complainant, )
)
v. )
) Appeal No. 01990451
Togo D. West, Jr., ) Agency No. 97-2269
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
On October 21, 1998, complainant timely filed an appeal with the
Commission from a final agency decision (FAD) pertaining to her
complainant of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq.<1>
The record reveals that during the relevant time, complainant was
employed as a temporary health care technician, GS-04, at the agency's
VA Medical Center in Phoenix, Arizona. Complainant alleged that she was
unfairly assigned duties, harassed, and informed that she was going to
be terminated. On June 4, 1997, complainant resigned from her position.
Believing she was a victim of racial and age discrimination, complainant
sought EEO counseling on June 5, 1997. Subsequently, she filed a
complaint dated July 7, 1997. Following an investigation of the complaint,
the file was forwarded to the agency for a FAD after complainant failed
to request a hearing.
The agency issued a FAD, dated September 24, 1998, finding that
complainant had not been discriminated against. The agency determined
that complainant failed to present a prima facie case of racial or age
discrimination since she did not show that she was treated differently
from people outside of her protected classes. Further, complainant
failed to establish a causal connection between the alleged agency action
and her race or age. Regarding the constructive discharge claim<2>,
complainant did not demonstrate that she found her working conditions to
be intolerable or that it caused her resignation. The agency indicated
that it was more likely than not, that complainant voluntarily resigned
to avoid termination. The FAD concluded that the agency had articulated
a legitimate nondiscriminatory reason for its actions. Specifically,
the agency noted the RMO testified that "complainant made several mistakes
that put patient care and safety at risk." In an effort to show pretext,
complainant contended that she was not given enough training on the job.
The agency found, however, that it had no duty to extend training and that
complainant stated that she had prior training. Accordingly, the FAD
found no discrimination based on race or sex because complainant failed
to establish that the agency's actions were motivated by discriminatory
animus.
Complainant presents no new contentions on appeal. The agency requests
that we affirm its September 24, 1998 FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that complainant failed to establish a
prima facie case of race or age discrimination because she submits only
assertions and conjecture to support her claims, presenting no credible
evidence from which to infer that any of the agency's actions were
the result of discriminatory animus towards her. Complainant attests
that she was treated like a slave and not given enough time to train.
When asked how her age related to the alleged actions, complainant
indicated that "...I feel that maybe they think I'm too old and they
want to get rid of me." Regarding racial discrimination, complainant was
unable to explain how she was treated differently because of her Native
American heritage. Instead, complainant stated that they should have
given her more time because she was "a new person." The Commission also
notes that complainant was unable to provide the names of any witnesses.
Assuming arguendo, that complaint had established a prima facie case we
find that the agency has articulated a legitimate, nondiscriminatory
reason for its action. According to the agency, complaint's mistakes
put patient health and safety at risk. The Commission finds that
complainant's performance problems and failure to follow directions is
fully supported by the record. The Nurse Manager of 4-D, complainant's
supervisor, testified that complainant had trouble following through
with assignments, failed to properly chart vital signs, and jeopardized
patient safety. During her training, complainant's preceptor stated that
she would ask the same question repeatedly, raising his concerns about
her skills and experience. Further, we find that complainant has failed
to present evidence establishing that the agency's articulated reason
was a pretext for discrimination. Therefore, the agency's determination
that complainant failed to establish that she was discriminated against
was correct.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's 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).
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 22, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
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.
2As noted in the FAD, complainant did not include the constructive
discharge claim in her formal complaint. The agency, however, chose
to include it based on the "circumstances surrounding her resignation"
and the fact that she has requested reinstatement as relief.