01A23404
09-19-2002
Andrea R. Cross, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Andrea R. Cross v. Department of Veterans Affairs
01A23404
September 19, 2002
.
Andrea R. Cross,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23404
Agency No. 200H-212
Hearing No. 170-A1-8518X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant claimed that she was discriminated
against on the bases of race (African-American) and sex (female) when
she was denied police officer training and terminated on January 3,
2001, during her probationary period.
The record reveals that complainant was hired as a Police Officer, GS-6,
at the agency's VA Medical Center in Philadelphia, Pennsylvania on July
2, 2000. Believing that she was the victim of discrimination based
on race and sex, complainant sought EEO counseling and, subsequently,
filed a complaint on January 3, 2001.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). By order dated April 12,
2002, the AJ remanded the complaint to the agency for issuance of a FAD
without a hearing, citing complainant's failure to prosecute.
On May 6, 2002, the agency issued a FAD finding no discrimination.
Specifically, the agency determined that complainant failed to establish
a prima facie case of race and sex discrimination. The agency determined
that complainant failed to show how she was treated differently from
similarly situated Police Officers of different protected classes under
similar circumstances. The agency further determined that management
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the agency presented evidence supporting a determination
that the denial of complainant's police officer training and termination
were precipitated when allegations of her misconduct arose. Further,
the agency found that complainant failed to present any evidence which
demonstrated that the agency's articulated reasons for its actions were
a pretext for discrimination.
Complainant makes no new arguments on appeal.
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, he 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).
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. See 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).
Upon review, the Commission finds that the evidence supports a
determination that the agency articulated legitimate, non-discriminatory
reasons for its employment actions. The agency determined that
complainant was not provided police officer training and was terminated
from her position as a Police Officer on the grounds of her misconduct.
The record in this case contains an affidavit dated April 10, 2001,
from the Chief of Police and Security Service. Therein, the Chief
of Police stated that complainant was scheduled to attend the Basic
Officer Course at the Law Enforcement Training Center in November 2000.
The Chief of Police further stated that when he started the process of
terminating complainant's employment during the probationary period,
he withdrew complainant's name from the training course. The Chief of
Police testified that he was the one that requested the Police Officer
training, not complainant. As to complainant's termination, the Chief
of Police stated he terminated complainant because of her misconduct for
failing to attend the mandatory fire safety training and engaging in a
financial transaction with a patient which is a violation of the agency'
s medical center policy. The Chief of Police further stated he gave
complainant an opportunity to respond in writing to the allegations of
misconduct prior to her termination. The Chief of Police testified that
he refused to accept complainant's response because she did not assume
responsibility for her actions. The record also contains an affidavit
dated April 10, 2001, from the Employee Relations Specialist. Therein,
the Employee Relations Specialist testified that probationary employees
do not receive progressive discipline, their first year is subject to a
review, and they could be terminated at any time. Complainant has not
demonstrated that the agency's articulated reasons for the denial of
Police Officer training and termination were a pretext for discrimination.
Accordingly, the agency's decision finding 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
September 19, 2002
__________________
Date