01985796
04-17-2000
Queenie Mitchell, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Queenie Mitchell v. Department of the Army
01985796
April 17, 2000
Queenie Mitchell, )
Complainant, )
) Appeal No. 01985796
v. ) Agency No. 94030255
Louis Caldera, ) 94050109
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint 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.<1> This appeal is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
by the agency as a Psychologist, GS-180-9. Complainant filed a formal
complaint on February 16, 1994, alleging discrimination, on the basis
of reprisal (prior EEO activity), when: (1) on October 14, 1993, she
was denied a request to be downgraded to a Social Services Assistant,
GS-186-7, to perform Triage counseling; (2) from October 18, 1993 until
November 12, 1993, she was required to perform Triage counseling for 20
hours per week, whereas her peers performed those duties for 4 to 8 hours
per week; (3) on February 3, 1994, S-1, her supervisor, detailed her to a
set of duties at a recreation center; and (4) on February 4th and 18th,
1994, management characterized her as being incompetent and recommended
immediate removal of her clinical duties. At the conclusion of the
investigation, complainant requested a hearing, and her complaint was
forwarded to an EEOC Administrative Judge (AJ). On March 16, 1995, the
AJ remanded the complaint to the agency because complainant was unable
to proceed. Complainant requested a FAD on July 10, 1995. The FAD,
dated June 23, 1997, found that complainant was not discriminated against.
This appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which
the first step normally consists of determining the existence of
a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to complainant's claim that, on October 14, 1993, she
was denied a request to be downgraded to a Social Services Assistant,
GS-186-7, to perform Triage counseling, we find that the agency has
articulated a legitimate, nondiscriminatory reason for its action.
The agency asserted that it could not downgrade complainant because
there was a staff shortage with an increasing caseload, and they needed
complainant to perform the position for which she was hired.
In response to complainant's claim that, from October 18, 1993 until
November 12, 1993, she was required to perform Triage counseling for
20 hours per week, whereas her peers performed those duties for 4 to
8 hours per week, we find that the agency has articulated a legitimate,
nondiscriminatory reason for its action. The agency stated that assigning
complainant 20 hours of Triage combined with a lighter case load was an
attempt to accommodate complainant as she transitioned from the civilian
program back to full counseling.
In response to complainant's claim that, on February 3, 1994, S-1,
her supervisor, detailed her to a set of duties at a recreation center,
we find that the agency has articulated a legitimate, nondiscriminatory
reason for its action, namely that they detailed her because her conduct
as an Alcohol and Drug Specialist was being investigated. The agency
stated, at the time of the detail, that it would continue until the
situation was resolved.
In response to complainant's claim that, on February 4th and 18th,
1994, management characterized her as being incompetent and recommended
immediate removal of her clinical duties, we find that the agency has
articulated legitimate, nondiscriminatory reasons for its action.
Complainant's supervisors cited four specific incidents of gross
negligence by complainant as the reason for the recommended removal.
The first occurred when a high risk patient, who needed immediate clinical
attention, did not receive mental health care until 30 days later,
due to complainant's negligence. The second occurred when a second
high risk patient was released without an escort by complainant, and
she failed to inform her supervisor, and the soldier's unit commander.
The third occurred when complainant's cases were reviewed and it was
discovered that of the 47 cases reviewed, 26 patients were not provided
any care. The fourth occurred when a patient of complainant's, who had
attempted suicide, was not given immediate rehabilitative services and
complainant did not notify her supervisor of the case.
The burden now returns to the complainant to demonstrate that the
agency's articulated reasons were a pretext for discrimination. We find
that the complainant has failed to do so. Complainant does not offer
any explanations with respect to claims (1) and (2). In response to
claims (3) and (4), complainant states that she did her job as best
as she could, but does not deny that the incidents, which the agency
labels as grossly negligent, occurred. Neither these explanations,
nor any other evidence in the record, demonstrate that the agency's
actions were pretextual. Therefore, the agency's determination that
complainant failed to establish that she was discriminated against,
with respect to these claims, was correct.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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:
April 17, 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:
________________________ _____________________________
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 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.