0120101023
06-10-2011
Courtney L. Divens,1 Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Courtney L. Divens,1
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101023
Agency No. 200H-0785-2009100754
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s December 11, 2009 final decision concerning
an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
The record reflects that Complainant worked at the Agency’s Canteen
Service at the VA Medical Center in Bath, New York for seven years before
she temporary promoted to the position of Chief on June 8, 2008, not to
exceed December 8, 2008.
On February 27, 2009, Complainant filed the instant formal complaint.
Therein, Complainant alleged that the Agency discriminated against her
on the basis of sex (female) when:
on November 24, 2008, she was terminated from her position as Chief,
Veterans Canteen Service, during her probationary period.
After the investigation, the Agency provided Complainant with a copy
of the report of investigation and notice of the right to request a
hearing before an EEOC Administrative Judge (AJ). In accordance with
Complainant’s request, the Agency issued a final decision on December
11, 2009, pursuant to 29 C.F.R. § 1614.110(b).
In its December 11, 2009 final decision, the Agency found no
discrimination. The Agency found that Complainant did not establish
a prima facie case of sex discrimination. The Agency nevertheless
found that Agency management articulated legitimate, nondiscriminatory
reasons for its actions which Complainant failed to show were a pretext
for discrimination.
Complainant’s direct supervisor (S1) was the deciding official to
terminate Complainant during her probationary period “based on the
sanitation conditions at canteen.” S1 stated that he found Complainant
“negligent in her management of the canteen. [Complainant] was given
proper training opportunities and guidance which are offered to all
canteen managers regardless of gender.” In the Proposed Removal
letter dated October 22, 2008, S1 notified Complainant that he was
proposing her termination from her Chief position on the grounds of
negligence and failure to maintain proper canteen operational oversight.
Specifically, S1 stated that as a result of a SOARS inspection, serious
sanitation/security violations were found. For instance, the temperature
logs for food and equipment were missing; food was not labeled/dated;
there were extreme unsanitary conditions in the food preparation areas;
the area hand dirty equipment and a moldy fountain drink station;
the staff did not wear the requisite hairnets, gloves and uniforms;
and there were no thermometers present. Furthermore, S1 stated that
Complainant’s sex was not a factor in his determination to terminate
her during her probationary period
The Associate Director of Operations (AD) stated that he sustained
Complainant’s proposed removal action “based on her disciplinary
record that included the proposed action, supporting documents and
her written reply. I took all of that into consideration and I found
the VCS managers who worked with the complainant and who had personal
knowledge ore creditable than the Complainant in making my decision.”
AD further stated that Complainant was terminated during her probationary
period “due to her inability to maintain a canteen.”
The Medical Center Director (D1) stated that on October 8, 2008, he closed
the canteen “based on serious sanitation/security violations during a
SOARS inspection.” Specifically, D1 stated “at the time, this part
of the facility was not meeting cleaning and monitoring standards and
represented an unsafe environment for preparing and storing food.”
D1 stated that Complainant “had a long history of needing constant
feedback to ensure cleanliness, stocking of supplies and not taking
action on difficult employees.”
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she should not be punished “for
failures made by her superiors. I worked to the best of my ability
with the training and examples that I had received from prior Chiefs.
I feel that I should be given the ability to be reinstated to have the
proper training that was due to me.”
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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
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).
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the Agency’s findings. Therefore, after a
review of the record in its entirety, including consideration of
all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency’s final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 10, 2011
__________________
Date
1 The record reflects that Complainant also is referred to as “Lynn
Divens.”
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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