0120062651
04-17-2007
Dorea L. White, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Dorea L. White,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200626511
Agency No. 2004-0641-2005102304
DECISION
Complainant filed an appeal with this Commission from the February 22,
2006 agency decision finding no discrimination and dismissing claim 1
of the complaint on the grounds that it was a collateral attack on the
workers' compensation process.
Complainant, a certified Nursing Assistant, alleged that the agency
discriminated her on the bases of race (African-American) and color
(black) when: (1) the Case Manager of the Office of Workers' Compensation
Programs (OWCP) accused complainant of having filed a fraudulent claim
and refused to pay complainant's full claim; and (2) when complainant's
employment was terminated in April 2005.
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. Complainant timely
requested a hearing but subsequently withdrew her request. Consequently,
the agency issued its decision pursuant to 29 C.F.R. � 1614.110(b).
In dismissing claim 1 of the complaint, the agency concluded that
complainant was using the EEO process to collaterally attack an action
which should have been challenged in the workers' compensation process.
Regarding claim 2, the agency concluded that complainant failed to
establish a prima facie case of race and color discrimination, noting that
complainant had failed to establish the causal nexus between her protected
classes and the agency's alleged discriminatory action. The agency
further concluded that even if complainant had established a prima facie
case, the agency had articulated a legitimate, nondiscriminatory reason
for its termination of complainant. Specifically, the agency stated
that complainant was terminated because of a poor time and attendance
record. Noting that complainant was serving a one-year probationary
period as a career conditional appointee, the agency stated that during
her probationary period, complainant had used excessive unplanned leave.
Because 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).
Complainant may establish a prima facie case of color or race
discrimination by showing that: (1) complainant was a member of the
protected class; (2) an adverse action was taken against complainant;
(3) a causal relationship existed between complainant's membership in
the protected class and the adverse action; and (4) other employees
outside of complainant's protected class were treated differently.
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. 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, complainant 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). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
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 a Memorandum from complainant's supervisor to the
Director of Human Services recommending that complainant not be retained
past her probationary period of April 13, 2005, noting that complainant
had used 64 hours of sick leave and 470 hours of leave without pay.
In her affidavit, complainant's supervisor stated that she recommended
complainant's termination because of her time and attendance record.
She also stated that she had terminated two White employees based on
their time and attendance. A memorandum provided by a Human Resources
Management Officer, dated October 26, 2005, reveals that there were
no terminations of term, temporary, or probationary appointments made
within the organizational unit going back two years from the date of
complainant's termination.
Upon review, the Commission finds that the agency's dismissal of
claim 1 was proper. Here, the record reveals that claim 1 concerns
the administration of complainant's workers' compensation claim and is
therefore appropriately dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another proceeding. See Kleinman v. United States Postal Service, EEOC
Request No. 05940585 (September 22, 1994); Lingad v. United States Postal
Service, EEOC Request No. 05930106 (June 24, 1993). The proper forum for
complainant to have raised claim 1, concerning a March 2005 work injury,
was within the workers' compensation process.
Regarding claim 2, the Commission concurs with the agency's finding
of no discrimination. Assuming without deciding that complainant
has established a prima facie case of discrimination based on race and
color, the record reveals that complainant was terminated because of her
attendance record and not for discriminatory reasons. Complainant has
failed to show that the agency's explanation for terminating her during
her probationary period was not the real reason and was mere pretext
to mask unlawful discrimination. Complainant has failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were motivated by a discriminatory animus and a pretext
for unlawful discrimination. It is not sufficient "to disbelieve the
employer; the fact finder must believe the plaintiff's explanation of
intentional discrimination." St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993). At all times, the ultimate burden of persuasion
remains with complainant to demonstrate by a preponderance of the
evidence that the agency's reasons were pretextual or motivated by
intentional discrimination. Complainant failed to carry this burden.
The agency's decision 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
April 17, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
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0120062651
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036