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