01a45519_r
07-21-2006
Yolette M. Davis, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Yolette M. Davis v. Department of the Army
01A45519
July 21, 2006
.
Yolette M. Davis,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A45519
Agency Nos. ARFTSAM03APR2120, ARFTSAM03JUN2133
Hearing No. 360-2004-0104X
DECISION
Complainant filed an appeal with this Commission from the July 28, 2004
agency decision which implemented the June 30, 2004 bench decision of the
EEOC Administrative Judge (AJ) finding no discrimination. Complainant's
appeal concerns her equal employment opportunity complaint of unlawful
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.
BACKGROUND
Complainant, a registered nurse and a Haitian, alleged that the agency
discriminated against her on the bases of race (African American), color
(black), national origin (Caribbean/West Indies), and sex (female) when:
1. On April 16, 2003, the head nurse who was a lieutenant colonel
and complainant's supervisor, refused complainant's request to
have Lt. Col. A or Lt. Col. B present when the head nurse counseled
complainant to carry out directions, although she had carried out the
directed tasks.
2. From November 4, 2002, through February 18, 2003, the head nurse
reassigned complainant to four different telephone logs/encounters in
five months.
The head nurse did not assign any of the five new contract nurses to
complainant's hallway for training.
Complainant also alleged that she was subjected to discrimination in
retaliation for prior protected EEO activity when:
4. On June 20, 2003, complainant was notified that she would be
terminated from her position as a clinical nurse, effective June 27,
2003.
The record reveals that complainant began working for the agency as
a clinical nurse in November 2002, subject to a probationary period
of one year. The record reveals that complainant's duties included
triage of health problems, whether received by telephone or in person.
About a week after complainant began employment, the head nurse became
complainant's supervisor. The record reveals that the head nurse left
the agency temporarily in February 2003, but met with complainant before
leaving. The record further reveals that at this meeting, the head nurse
provided complainant with a written statement concerning her performance.
The record also reveals that when the chief nurse returned to the agency
in April 2003, the head nurse sought advice on April 11, 2003, from an
agency personnel specialist regarding terminating complainant because
of her performance. The head nurse testified that when he met with
complainant on April 16, 2003, in the presence of Lt. Col. A, the head
nurse discussed concerns with complainant that he had received regarding
complainant's performance. The record also reveals that complainant
refused to sign a Memorandum, dated April 16, 2003, which had as its
subject �Post Interim Evaluation Counseling� and that Lt. Col. A was
present during the meeting. The record discloses that complainant sought
EEO counseling on April 18, 2003. Complainant was terminated effective
June 27, 2003.
In her decision, the AJ concluded that complainant established a prima
facie case of discrimination based on race, color, national origin,
and sex. The AJ concluded that complainant was counseled and subsequently
terminated because the agency was not satisfied with her work performance.
The AJ noted that as early as February 2003, complainant was given
enough information to put her on notice that the agency had concerns
about her work performance. The AJ also concluded that complainant
failed to produce sufficient evidence of pretext to carry her burden of
persuasion to support a finding of discrimination.
The AJ also concluded that complainant failed to demonstrate that the
agency's reason for her termination was mere pretext, noting that there
was no evidence of discriminatory animus on the part of the head nurse.
The AJ found �truthful� the testimony of Dr. A, one of the doctors who
complained to the head nurse about complainant's performance. The AJ
noted Dr. A's testimony that he had received telephone messages taken by
complainant which were not clear enough to clarify what the patient needed
and that he would have to call the patient himself which defeated the
purpose of having nurses take calls for the doctors. The AJ also noted
that Dr. A's testimony that complainant wrote down the wrong medications
or incomplete information about medications in her telephone messages.
The AJ noted that Dr. A gave examples of situations where complainant
was confused about common medications for diabetes and had indicated
that a patient needed medication used for cardiac problems, instead of
leg cramps. The AJ also noted that it appeared that the head nurse was
reluctant to confront complainant directly about the concerns that he
had about complainant's performance and that he softened his criticism
of her because he did not want to be blunt.
The AJ also concluded that although the nurse (Nurse A) who substituted
for the head nurse in his absence left a lot to be desired in terms
of appropriate management skills, there was no evidence to support
complainant's allegations of discrimination. The AJ noted that although
there was testimony by a nurse practitioner that Nurse A was harder on
Blacks than other similarly situated employees, there was no evidence that
complainant was subjected to harsher treatment than other non-Blacks,
noting testimony that Nurse A was considered �a hard person� with whom
to work.
Regarding the issue of reprisal, the AJ determined that the head nurse had
considered terminating complainant before he became aware of complainant's
EEO activity. The AJ noted the April 11, 2003 electronic mail which the
head nurse had sent to an agency personnel specialist, seeking advice on
the requirements for terminating complainant and expressing concerns about
complainant's performance. The AJ also noted that the concerns raised by
Dr. A to the head nurse concerning complainant's work performance were
made prior to the head nurse's and Dr. A's knowledge of complainant's
EEO activity.
On appeal, complainant asserts that the AJ's decision was heavily based
on the credibility of the witnesses and that because the AJ participated
in the hearing by telephone, the AJ was unable to observe the witnesses.
Complainant also asserts that the AJ's finding that the head nurse was
the agency official responsible for complainant's termination was not
supported by the evidence and that it was the nurse who substituted for
the head nurse in his absence who influenced the head nurse.
ANALYSIS AND FINDINGS
The Commission notes that the entire hearing in this case was held by
telephone. There is no indication that either party objected to the case
being heard by telephone prior to the hearing. On appeal, complainant
objects to the hearing being held by telephone.<1> Complainant argues
on appeal that the AJ �determined the [a]gency witnesses to be more
credible than [c]omplainant's witnesses.� Complainant argues that
because the AJ was unable to view the witnesses during their testimony,
the AJ could not properly address the witnesses' credibility.
The Commission has held that testimony may not be taken by telephone in
the absence of exigent circumstances, unless at the joint request of the
parties and provided specified conditions have been met. See Louthen
v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17,
2006).<2> However, since the facts of this case pre-date Louthen,
we will assess the propriety of conducting the hearing telephonically
by considering the totality of the circumstances. Here, it is unclear
whether exigent circumstances existed. On the other hand, it is clear
that there were no issues of witness credibility that might have been
impacted by the taking of testimony telephonically. Although the AJ
found the testimony or Dr. A to be �truthful,�it does not appear that the
AJ relied on the demeanor of Dr. A to make a credibility determination.
Rather, the AJ apparently relied on the detail and logical consistency
that Dr. A provided in support of Dr. A's testimony. Furthermore, the
AJ also relied on documentary evidence, including an electronic mail
message establishing the time line of actions, to reach her findings.
Under these circumstances, even if it is assumed that the AJ abused
her discretion in this case by taking testimony telephonically, the
Commission finds that her action constituted harmless error.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as "such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion." Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
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 a complainant to prevail, he or 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. See 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. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). The burden of persuasion that the agency discriminated against
complainant always remains with complainant.
The 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 its action, the
factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis to the ultimate issue of whether complainant has shown by
a preponderance of the evidence that the agency's actions were motivated
by discrimination. See United States 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).
The record contains the termination letter which reflects that complainant
was terminated because her communication of patient information to care
providers was frequently incomplete or inaccurate and providers had to
spend additional time verifying and obtaining information which could
have been spent on other aspects of patient care. The termination
letter also reflects that complainant had transcribed patient requests
for renewal of medications with the wrong name of the medications,
wrong dosages and wrong frequency which if acted on by the care provider
could have compromised patient safety. The termination letter also noted
complainant's poor interactions with staff and patients and complainant's
inflexibility.
The Commission finds that the AJ's findings are supported by substantial
evidence in the record. Complainant failed to establish that the
agency's actions was taken because of complainant's membership in
protected classes or in retaliation for complainant's prior EEO activity.
Further, complainant has not shown by a preponderance of the evidence
that the agency's actions were motivated by discriminatory animus.
The AJ's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 21, 2006
__________________
Date
1The fact that a party has objected to telephonic testimony, while
instructive, is not dispositive of error. See Louthen v. United States
Postal Serv., EEOC Appeal No. 01A44521 (May 17, 2006).
2�In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent. When
assessing prior instances of telephonic testimony, the Commission will
determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless,
as is found in this case.� Sotomayor v. Department of the Army, EEOC
Appeal No. 01A43440 (May 17, 2006).