0120073988
03-12-2009
Toni A. Allen, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Toni A. Allen,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073988
Agency No. 200J-0552-2006103822
DECISION
On September 17, 2007, complainant filed an appeal from the agency's
August 27, 2007 final decision concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Nursing Assistant, GS-5, in the Operating Room (OR) at the Dayton
VA Medical Center, in Dayton, Ohio. On October 24, 2006, complainant
filed an EEO complaint alleging that she was discriminated against on
the basis of race (Black) when, on September 11, 2006, complainant was
issued a written reprimand.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
The FAD initially found that the agency had properly dismissed additional
claims of discrimination which complainant had originally raised. The FAD
then addressed the reprimand, and found that complainant did not establish
a prima facie case of race discrimination. The FAD found that the agency
articulated legitimate, nondiscriminatory reasons as set forth in the
July 25, 2006, letter of proposed reprimand: (1) Complainant's refusal
to retrieve a patient's medical x-rays for a surgical procedure being
performed that day, opting instead to remain in the break lounge, causing
a delay in patient care; (2) Complainant's supervisor actually observing
complainant in the break lounge reading the newspaper and talking on
the telephone when she was supposed to be retrieving patient x-rays;
(3) Complainant admitting that she was in the break lounge talking to
her family on the telephone instead of delivering the surgical patients
x-rays; and (4) Complainant's previous counseling for being out of her
work area and taking an extended, unauthorized break. The FAD then found
that complainant did not establish that these reasons were pretextual,
and concluded that complainant failed to prove that she was subjected
to discrimination as alleged.
Complainant raises no new arguments on appeal. The agency requests that
the Commission affirm the FAD. As this is an appeal from a decision
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, �
VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant could establish a prima facie
case of race discrimination, the agency has articulated legitimate,
nondiscriminatory reasons as described in the FAD. Even assuming it is
true that, as complainant alleges, complainant's position description
does not specifically require her to retrieve X-rays, this record
contains no persuasive evidence that management's actions were motivated
by race-based discriminatory animus. In so finding, we note that we
do not have the benefit of an Administrative Judge's findings after a
hearing, as complainant chose a FAD instead, and therefore, we can only
evaluate the facts based on the weight of the evidence presented to us.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 12, 2009
Date
1 Complainant initially raised additional claims of discrimination
which the agency dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) & (2).
As complainant has not submitted any arguments on appeal specifically
challenging these dismissals, we need not address them herein.
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0120073988
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073988