01972814
08-20-1999
Catherine M. Wine, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Catherine M. Wine v. Department of Veterans Affairs
01972814
August 20, 1999
Catherine M. Wine, )
Appellant, )
)
v. ) Appeal No. 01972814
) Agency No. 95-0072
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on
the bases of race (Black), color (Black), and reprisal (prior EEO
activity), in violation of Title VII of the Civil Rights Act of 1964
("Title VII"), as amended, 42 U.S.C. � 2000e et seq. Appellant alleges
she was discriminated against when management attempted to reassign her
and then later rescinded the reassignment and then removed three wards
from her supervision. This appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
REVERSED AND REMANDED.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as the Assistant Chief, Nursing Service for Medical/Surgical/
Psychological/Rehabilitation, at the agency's Harry S. Truman Memorial
Veterans Hospital in Columbia, Missouri ("facility"). Appellant alleged
that the Associate Director of Nursing ("AD"), her immediate supervisor,
upon accepting the position two years prior, began on a course to remove
the only two Black nurses in management positions, appellant and the head
nurse of Ward 5-East ("HN5"). Appellant supervised HN5's ward along
several others.
The central event in this case occurred in October 1993, when a Ward
5-East nurse administered the wrong drug to a patient. After the
incident, HN5 decided to conduct an inservice training for her nursing
staff to educate them on proper procedure. HN5 relayed her course of
action to appellant, who in turn informed AD of the plans. However, after
learning that the staff just three weeks prior had received an inservice
training from her Assistant Head Nurse regarding proper procedure, HN5
decided to delay further training for a few months. HN5 stated that
while the incident was dangerous, she did not see a reason to repeat the
training in such a close time frame. Apparently, HN5 failed to inform
appellant and AD of her decision to delay the training. In November
1993, the Office of Total Quality Improvement requested that AD send
a copy of the sign-in sheet for the Ward 5-East inservice training.
The AD thereafter asked Nursing Education to provide her a copy of the
sign-in sheet for the training. Nursing Education stated that they had
conduct no such training. On November 12, 1993 and prior to leaving town
for two weeks, AD supposedly sent appellant a memorandum asking that she
and HN5 provide a date in which the inservice will occur and provide a
sign-in sheet by November 26, 1993. Upon returning on November 22, 1993,
AD asked appellant had she seen the memorandum. Appellant indicated
that she had not seen the memorandum. On November 24, 1993, AD hand
delivered a copy of the memorandum to appellant. Appellant stated
that because of the Thanksgiving holiday, the death of her brother,
and the hospitalization of HN5, she was unable to provide a response
to AD by November 26, 1993. However, it does not appear that appellant
informed AD of her need for an extension. As a result, on December 2,
1993, AD issue a written counseling to appellant for failing to timely
respond to her request. After receiving a similar written counseling
on December 2, 1993, HN5 provided AD a letter explaining why she did
not schedule the inservice training.<1>
AD stated that on December 7, 1993, after receiving complaints from
seven nurses in Ward 5-East and still being concerned about the
inservice training incident, she issued a memorandum requesting that
appellant to prepare a written proposal detailing how she planned to
deal with the concerns and perceptions of the nurses within Ward 5-East.
On December 16, 1993, appellant responded by stating she was unable to
adequately address the allegations of the Ward 5-East nurses without
any supporting evidence. Appellant further stated that the nurses'
concerns were nebulous and nonspecific, and that without input from HN5,
she viewed AD's actions as an intent to harm an African-American manager.
AD stated that after she received appellant's response, she went to
Personnel to get an understanding of her options. As a result of her
communications with Personnel, AD decided to request that management
form an impartial board to investigate the issues with Ward 5-East.
In January 1994, facility management formed an Administrative Board of
Inquiry ("Board") which investigated management issues regarding Ward
5-East. On March 2, 1994, the Board made the following conclusions:
(1) some allegations listed in AD's memorandum to appellant were general
and vague; (2) the lack of staff confidence in HN5 resulted because of
HN5's poor interpersonal skills; and (3) most of the problems within Ward
5-East arose because some of the staff believed that HN5 showed favoritism
in staff scheduling. The Board recommended that appellant develop
and supervise a personal improvement plan to enhance the interpersonal
skills of HN5 and aid HN5 in developing plans to ensure staff compliance
with nursing standards and in creating a reliable scheduling system.
AD stated that as a result of the Board's findings, she made the decision
to recommend to the facility's Director that appellant be reassigned from
her current position to the position of Assistant Chief, Nursing Service
for Special Projects.<2> However, after the facility's Director retired,
regional management decided that appellant's reassignment should wait
until the appointment of a new Director. AD stated that after the new
Director assumed his duties, she discussed her issues and concerns with
him and it was decided that three wards would be removed from appellant's
responsibilities.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on June 30, 1994.
The agency accepted the complaint for processing, and at the conclusion
of the investigation, appellant was granted thirty days to request a
hearing before an EEOC Administrative Judge. After initially requesting a
hearing, appellant withdrew the request and asked the agency issue a FAD.
On November 27, 1996, the agency issued a FAD finding no discrimination.
A certified return receipt for the FAD was received and signed for
by a female with a name similar to appellant on December 20, 1996.
Appellant sent a letter to the agency stating that she did not receive
a copy of the FAD until January 22, 1997 when it was hand-delivered to
her by her local EEO office. Appellant further stated that the envelope
accompanying the FAD noted that the document had been opened in error.
After reviewing the evidence, the Commission concludes that the FAD was
misdelivered and that upon receipt, appellant timely appealed the FAD.
The FAD concluded that appellant established prima facie cases of race
and reprisal discrimination. The FAD then concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions, namely,
that the AD stated that the actions were taken because of appellant's
performance deficiencies. Finally, the FAD found that appellant did
not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination or retaliation.
On appeal, appellant makes no new contentions and the agency requests
that we affirm the FAD.
ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973) and Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases). Appellant has the initial burden of establishing a prima
facie case of discrimination. McDonnell Douglas, at 802. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Appellant must then prove, by a preponderance of the evidence, that the
legitimate reason articulated by the agency was not its true reason,
but was pretext for discrimination. Id. at 256.
The Commission agrees with the agency that appellant established a prima
facie case of race discrimination because AD acknowledged that another
Assistant Chief, not in appellant's protected class, with performance
problems was not similarly reassigned or stripped of her responsibilities.
This individual was placed on a ninety (90) day performance improvement
plan without any change to her position. We also find that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
namely, that AD was dissatisfied with appellant's performance.
Because the agency has articulated legitimate, nondiscriminatory reasons
for its decision, appellant now bears the burden of establishing that the
agency's articulated reasons are merely a pretext for discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Appellant can do this by showing that a discriminatory reason
motivated the agency. Id. (citing St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993). The Commission has held:
Disbelief of the agency's articulated reasons does not compel a
finding of discrimination as a matter of law. However, disbelief
of the reasons put forward by the agency, together with the
elements of the prima facie case, may suffice to show intentional
discrimination.
Jones v. Department of Veterans Affairs, EEOC Request No. 05940013
(Nov. 2, 1995) (citing St. Mary's Honor Center) (other citations
omitted).
After a thorough review of all the evidence of record, the Commission
finds that appellant has met her burden of establishing, by a
preponderance of the evidence, that the agency's reasons for her
initial reassignment and subsequent loss of certain responsibilities
were a pretext masking racial discrimination. First, we find that AD's
explanation for treating appellant's performance problem differently
than that of the White Assistant Chief is not credible. AD labeled both
situations as performance problems, but she did not provide appellant
with the similar opportunity to undergo a performance improvement plan.
AD's only explanation for the disparate treatment was that appellant's
problem involved patient care. We find that this is not an adequate
explanation for the disparity in her treatment of her two subordinates.
Second, AD stated that a major factor in her actions was the Board's
findings concerning appellant. In reviewing the Board's findings,
we do not interpret the findings and conclusions of the Board to find
any significant deficiencies on appellant's part. In sum, the Board
recommended that appellant develop a personal improvement plan to enhance
HN5's interpersonal skills and aid HN5 in creating a reliable scheduling
system which was the source of much of the concern among the Ward 5-East
nurses.
In further support of pretext, we note the following: (1) prior to the
arrival of AD, appellant had made consistent progression up the management
ladder, including a nine-month term as Acting Associate Director of
Nursing immediately prior to AD's arrival at the facility; (2) the head
nurses and clinical nurse specialists working in the wards removed from
appellant submitted several letters opposing the removal and expressing
support for appellant's leadership; and (3) some allegations raised
against appellant were vague<3>, while other problems raised against
appellant were general problems consistent throughout the facility.<4>
After reviewing the record and weighing the evidence presented by
both parties, we find that the agency's reasons for its actions are a
pretext for race discrimination. In so finding, we again emphasize AD's
inadequate explanation for the different treatment of appellant's alleged
performance problems. Further, other evidence indicates that prior to
AD's arrival at the facility, appellant had been a well-thought-of manager
with 22 years of progressive employment and no history of problems.
As to appellant's reprisal claim, we find that the record contains
insufficient evidence to support a finding of retaliation. While
appellant contends that she filed an EEO complaint in December 1993,
the record does not provide a copy of the complaint or any other evidence
showing that appellant filed a prior complaint.
CONCLUSION
Accordingly, it is the decision of this Commission to REVERSE the
agency's final decision finding no discrimination and find that the
agency discriminated against appellant on the bases of her race when
it initially reassigned her and then later removed three wards from her
responsibility.
ORDER (D1092)
The agency is ordered to take the following remedial actions:
(1) The agency shall place appellant in her original position with the
same areas of responsibility.
(2) The agency shall conduct a supplemental investigation on the issue of
appellant's entitlement to compensatory damages, and provide her with an
opportunity to develop the record with respect to this claim. See West
v. Gibson, No. 98-238, 1999 WL 380643 (U.S. June 14, 1999). Specifically,
she shall be afforded an opportunity to establish a causal relationship
between the discrimination and any pecuniary or non-pecuniary losses.
Thereafter, the agency shall issue a final decision on the amount of
compensatory damages owed to appellant, if any. 29 C.F.R. �1614.110.
The supplemental investigation and issuance of the final decision must
be completed within 120 calendar days of the date this decision becomes
final. A copy of the final decision must be submitted to the Compliance
Officer, as referenced below.
(3) The agency shall conduct EEO training for the responsible management
officials at the Harry S. Truman Memorial Veterans Hospital with respect
to eliminating discrimination in the Federal workplace.
(5) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include evidence that the corrective action
has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). Appellant also has the right to file a civil
action to enforce compliance with the Commission's order prior to or
following an administrative petition for enforcement. See 29 C.F.R. ��
1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. �� 1614.408 and 1614.409. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. �2000e-16 (Supp. V 1993). If appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in
some jurisdictions have interpreted the Civil Rights Act of 1991 in a
manner suggesting that a civil action must be filed WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision. To ensure
that your civil action is considered timely, you are advised to file it
WITHIN (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
August 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 HN5 did not learn of the memorandum until November 29, 1993.
2 This position was a non-supervisory position where appellant would
work on special projects as provided by AD.
3 The AD and Director consistently made reference to favoritism and
inability to work with others. However, in viewing the record, we find
very little credible evidence to support these allegations.
4 AD attributed such problems as lack of standard procedures as a concern
within appellant's wards. However, statements from others indicated that
such problems were not limited to appellant's wards, but were evident
throughout the facility.