01973327
08-20-1999
Valerie S. Shipp, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Valerie S. Shipp v. Department of Veterans Affairs
01973327
August 20, 1999
Valerie S. Shipp, )
Appellant, )
)
v. ) Appeal No. 01973327
) Agency No. 96-0512
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of race (Black) in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. Appellant alleges she was
discriminated against when: (1) she was not selected for one of three
Nursing Instruction positions<1>; and (2) she was reassigned to a Staff
Nurse position with the Ambulatory Care Unit. This appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is REVERSED.
BACKGROUND
The record reveals that during the relevant time, appellant was
employed as a Research/Recruiter Nurse at the agency's Medical Center in
Salisbury, North Carolina ("facility"). Appellant's position required
her to equally split her time between performing research duties for
the Research Development Department and recruiting prospective nurses
for the facility. In December 1994, appellant received training from
a program entitled "National Nurse Staffing Methodology," which was a
program mandated by the Central Office to change the staffing methods used
by the agency's facilities. After appellant returned from the training,
it was her responsibility to develop a plan to implement the mandates
of the program. On September 15, 1995, appellant submitted her report
for the implementation of the program.
In April 1995, the facility announced three Nursing Instruction positions.
Appellant applied and interviewed for the position, but on June 8, 1995,
was notified that she had not been selected. At some point thereafter,
appellant was notified that her research duties were being reassigned
to a co-worker. Appellant then sought reassignment back to her prior
position as a Staff Nurse in the Ambulatory Care Unit. On July 31, 1995,
appellant was temporarily reassigned as a Staff Nurse in the Ambulatory
Care Unit.
After learning that the three selectees for the positions were White
and believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on October 13,
1995. At the conclusion of the investigation, appellant was informed
of her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive an immediate final decision by the agency.
It is unclear as to whether appellant requested an immediate FAD or if she
failed to respond within the time period specified in our regulations.
However, the agency issued a FAD on February 12, 1997, finding no
discrimination.
In its FAD, the agency concluded that appellant established a prima
facie case of race discrimination regarding her non-selection because
she was qualified for the positions but was not selected in favor of
the selectees, individuals outside her protected class. As for her
reassignment, the FAD concluded that appellant failed to establish a
prima facie case of discrimination because the record showed that the
reassignment was the result of appellant's request to return to the
Ambulatory Care Unit. The FAD then concluded that the agency articulated
legitimate, nondiscriminatory reasons for appellant's non-selection,
namely, that management believed that appellant was not self-directed and
did not possess the requisite follow-through for the positions. Finally,
the FAD found that appellant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination.
On appeal, appellant contends that the agency failed to fairly evaluate
the evidence in this case. The agency requests that we affirm its FAD.
ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Appellant has the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas,
at 802. If appellant meets this burden, then the burden shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Appellant must then prove, by a preponderance of
the evidence, that the legitimate reason articulated by the agency was
not its true reason, but was pretext for discrimination. Id. at 256.
The Commission agrees with the FAD's determination that appellant
failed to establish a prima facie case of discrimination regarding
her reassignment. The record indicates that after appellant was not
selected for one of the disputed position and was informed of the change
in her job duties, she requested the reassignment. As a result, we find
she has failed to present an inference of discrimination concerning the
reassignment.
We also agree with the agency that appellant established a prima facie
case of race discrimination regarding her non-selection because she
was qualified for the positions but was not selected in favor of the
selectees, individuals outside her protected class.<2> We also find
that the agency articulated legitimate, nondiscriminatory reasons for its
actions, namely, that the management officials involved in the selections
believed that appellant lacked self-direction and follow-through.
Because the agency has articulated legitimate, nondiscriminatory reasons
for its decision, appellant now bears the burden of establishing that
the agency's articulated reasons are merely a pretext for discrimination.
Shapiro, supra. Appellant can do this by showing that a discriminatory
reason motivated the agency. Id. (citing St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993)). The Commission has held:
Disbelief of the agency's articulated reasons does not compel a
finding of discrimination as a matter of law. However, disbelief
of the reasons put forward by the agency, together with the
elements of the prima facie case, may suffice to show intentional
discrimination.
Jones v. Department of Veterans Affairs, EEOC Request No. 05940013
(Nov. 2, 1995) (citing St. Mary's Honor Center) (other citations
omitted).
After a thorough review of all the evidence of record, the Commission
finds that appellant has met her burden of establishing, by a
preponderance of the evidence, that the agency's reasons for her
non-selection were a pretext masking racial discrimination. The agency
stated that appellant was not selected for the positions because she
was not self-directed and did not possess the requisite follow-through.
As an example of her deficiencies, the agency pointed to her efforts in
implementing a newly mandated staffing methodology program. The agency
explained that in the Fall 1993, appellant attended a workshop for
training in the new program, but upon returning from the training,
did not promptly begin implementing the program at the facility.
The agency further stated that when appellant finally submitted her
implementation report in September 1995, much of the data collected was
erroneous and had to be redone. To further support its contentions,
the agency explained as a recruiter, appellant lacked follow-through
and had to be constantly prodded into expediting the hiring process.
As to her experience as related to the positions, the agency stated that
appellant was not qualified for the medical/surgical position because
she lacked substantial experience in staff education and in the general
surgical area.
First, we find that the agency's contentions that appellant lacked
self-direction and follow-through is not supported by the record.
Appellant's two performance appraisals issued immediately prior to the
incidents at the heart of this matter explicitly stated that appellant
was very self-directed and considered an asset to her unit. Appellant
was rated "High Satisfactory" on both appraisals. In her performance
appraisal for the period involving this complaint, there was no mention
of appellant's inability to work independently or to follow-through
on assignments. We note that the same management officials, who stated
that appellant lacked these abilities, were the rating and concurring
officials on her appraisal for the disputed period. Yet, they did not
consider these deficiencies significant enough to include in appellant's
performance appraisal.
As for the implementation of the new staffing methodology program,
we find several problems with management's assessment of appellant's
performance. Initially, we find that the record does not support
management's allegations as to the length of time appellant expended
to complete the implementation plan. While management contends that
she completed the staffing methodology workshop in the Fall of 1993,
appellant's Certificate of Completion indicates that she completed the
workshop on December 15, 1994. We also note that after appellant's tenure
as Research/Recruiter Nurse, management separated the position into two
full-time jobs. The record supports the finding that during appellant's
tenure in the Research/Recruiter position, management expected her to
fulfill all of the responsibilities of each of these full-time positions.
In further support of pretext, we note the following: (1) while
appellant applied for all three positions, she was only considered for
the Medical/Surgical position; (2) the EEO Counselor's Report indicated
that the individual who replaced appellant in the research position
believed that appellant's removal was racially motivated<3>; and (3)
the management team responsible for the selection never provided adequate
explanation as to why appellant's education and prior teaching experience
were insufficient for the positions in question.<4>
After reviewing the record and weighing the evidence presented by both
parties, we find that the agency's reasons for appellant's non-selection
are a pretext for race discrimination. In so finding, we again emphasize
that management contends that did not select appellant because of certain
performance deficiencies, but the very same management officials failed to
make any note of these deficiencies in appellant's performance appraisal.
Moreover, we find that none of the agency's articulated reasons for the
non-selection are supported by the record.
CONCLUSION
Accordingly, it is the decision of this Commission to REVERSE the
agency's final decision finding no discrimination and find that the
agency discriminated against appellant on the bases of her race when it
failed to select her for one of the three Nursing Instructor positions.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively place appellant into one of the three
positions from the effective date of the selections. Appellant shall
also be awarded back pay, seniority and other employee benefits from the
date of the effective selection, along with any incurred and reasonable
attorney's fees.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due appellant, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. The agency is directed to conduct training for the management
staff at the facility. The agency shall address these employees'
responsibilities with respect to eliminating discrimination in the
workplace and all other supervisory and managerial responsibilities
under equal employment opportunity law.
3. The agency shall conduct a supplemental investigation on the
issue of appellant's entitlement to compensatory damages and shall
afford appellant an opportunity to establish a causal relationship
between the incident of harassment and any pecuniary or non-pecuniary
losses. See, West v. Gibson, No. 98-238, 1999 WL 380643 (U.S. June 14,
1999). Appellant shall cooperate in the agency's efforts to compute
the amount of compensatory damages, and shall provide all relevant
information requested by the agency. The agency shall issue a final
decision on the issue of compensatory damages. 29 C.F.R. �1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below;
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Salisbury, North Carolina Medical
Center copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c)(Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501(e). The award of attorney's fees shall be paid by
the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in
some jurisdictions have interpreted the Civil Rights Act of 1991 in a
manner suggesting that a civil action must be filed WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision. To ensure
that your civil action is considered timely, you are advised to file it
WITHIN (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
August 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The positions were in the areas of Medical/Surgical, Psychiatric, and
Long-Term Care. The three positions were advertised under one vacancy
announcement with the same recommending and selecting officials for each
position.
2
3 This individual, a White co-worker, had assisted appellant in the
implementation project and was familiar with the circumstances surrounding
appellant's removal from the research department.
4 Appellant has a Master's Degree in Nursing Education and has taught
nursing on the university level.