William T. Merritt, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 28, 2002
01A14147 (E.E.O.C. Oct. 28, 2002)

01A14147

10-28-2002

William T. Merritt, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


William T. Merritt v. Department of Veterans Affairs

01A14147

October 28, 2002

.

William T. Merritt,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A14147

Agency No. 200L-1542

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his 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 alleged that he was discriminated

against on the basis of race (Black) when he was given a written

counseling letter without being given an opportunity for comment.

The record reveals that during the relevant time, complainant was

employed as a Nursing Assistant GS-4 at the agency's Veterans Affairs

Medical Center in Little Rock, Arkansas. Believing he was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed a formal complaint on June 16, 2000. At the conclusion of the

investigation, complainant elected to receive a final agency decision.

In its final decision, the agency concluded that complainant had not

proven discrimination by a preponderance of the evidence and this

appeal ensued.

On appeal, complainant contends that his supervisor's references in the

record to his past alcohol abuse indicated a motive to discriminate

against him because it had no bearing on the incident at issue.

He contends that there has never been an investigation of patient abuse

conducted against any other employee and that he had never been counseled

in the past about problems dealing with difficult patients. The agency

responds that its final decision was correct and that complainant raised

issues that had little relevance to his claim of race discrimination.

ANALYSIS AND FINDINGS

Although the initial inquiry in a discrimination case usually focuses

on whether the petitioner has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether he has demonstrated by

a preponderance of the evidence that the agency's reasons for its

actions merely were a pretext for discrimination. Id.; see also United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

714-717 (1983). In this case, the Commission finds that the agency

has articulated legitimate, nondiscriminatory reasons for its action.

Specifically, the agency stated that complainant was issued a written

counseling memorandum and required to undergo training because it was

determined that he had not responded properly when a patient became

upset and abusive. In addition, the Associate Chief Nurse (Black) and

the Nurse Manager (Black) stated that although it had been concluded

that the patient's charge of abuse against complainant was unfounded,

complainant had other incidents in the past when his interpersonal skills

were found to be deficient when he was faced with a difficult patient.

The agency's witnesses testified that the classes complainant was

instructed to take were intended to improve his skills and were not

required because of discrimination.

Complainant claimed that because of discrimination, he was not given the

opportunity to participate in the investigation or to hear and respond

to the specific charges of the patient against him. The record does not

support complainant's contention, but on the contrary, contains evidence

that complainant gave a statement concerning the incident and that those

who reached the conclusion that the patient's allegations were unfounded,

were aware of complainant's version of the events.

Based on the Commission's review of the evidence, complainant failed to

show that the agency's managers reasons for issuing the written counseling

were a pretext for discrimination based on complainant's race or that

he was subjected to discrimination in the manner in which the incident

was investigated.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the agency's

final decision.

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

October 28, 2002

__________________

Date