01973996
09-10-1999
Hazel N. Clark, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Hazel N. Clark v. Department of Veterans Affairs
01973996
September 10, 1999
Hazel N. Clark, )
Appellant, )
) Appeal No. 01973996
v. ) Agency No. 96-0156
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
On April 17, 1997, Hazel N. Clark (hereinafter referred to as appellant)
initiated an appeal to the Equal Employment Opportunity Commission
(Commission) from a final decision of the agency concerning her complaint
of discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. The final agency decision
was received by appellant on March 24, 1997. Accordingly, the appeal
is timely, and is accepted in accordance with the provisions of EEOC
Order No. 960, as amended.
The issue on appeal is whether appellant proved, by a preponderance of
the evidence, that she was discriminated against on the bases of her race
(African-American), color (black), and in reprisal for prior EEO activity
when she received a "highly satisfactory" performance appraisal for the
period ending May 10, 1995.
Appellant filed a formal EEO complaint in August 1995, raising the
above-referenced allegation of discrimination. The agency accepted
appellant's complaint for processing, and conducted an investigation.
Thereafter, the agency provided appellant with a copy of the investigative
report, and notified her of her right to either an administrative hearing
or a final agency decision in the matter. Appellant failed to timely
respond to the notice, and the agency issued a final decision dated March
13, 1997, finding that appellant had not been subjected to discrimination
or reprisal. It is from this decision that appellant now appeals.
A review of the record reveals that appellant, a Dental Hygienist,
initially received a rating of "Fully Satisfactory" for the period
from April 1994 through May 1995. The Chief of Dental Services (Chief)
increased appellant's rating to "Highly Satisfactory." Appellant stated
that she and the EEO Counselor met with her Supervisor and the Chief
several times after she received her prior rating to discuss what she
would need to do in order to receive a rating of "Outstanding." Appellant
stated that she was repeatedly told that her performance was fine and was
never told she would not receive the higher rating. Appellant stated
that the other Hygienist (white; Comparative) does less work and has
less experience, yet received an "Outstanding" performance rating.
Both appellant's Supervisor and the Chief stated that appellant did not
see enough patients each day to justify a higher rating. Appellant's
Supervisor noted that, through an agreement with the union, appellant
was to see 5 patients each day. Appellant, however, saw an average of
3.1 patients per day, the same number she saw during the previous rating
period. While the Chief acknowledged that appellant saw approximately
21% more patients than she had previously, he attributed the increase to
the fact that appellant used less leave during the current rating period.
The record reveals that the Comparative saw 4.84 patients per day during
the period in question. Appellant's Supervisor stated that both appellant
and the Comparative had "no shows," but that the Comparative asked to
work on additional patients to fill those appointments. The Chief stated
that while appellant was making a greater effort to fill appointments
which were canceled during the time she was meeting with management and
the EEO Counselor, she stopped doing so after two months.
Appellant's complaint presents the issue of whether the agency subjected
her to disparate treatment on the bases of her race, color, and prior
EEO activity. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
provides an analytical framework for proving employment discrimination in
cases in which disparate treatment is alleged. These same standards apply
to complaints of reprisal. See Burrus v. United Telephone of Kansas,
Inc., 683 F.2d 339 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
First, appellant must establish a prima facie case by presenting enough
evidence to raise an inference of discrimination. McDonnell Douglas,
supra, at 802. The agency may rebut appellant's prima facie case by
articulating legitimate, nondiscriminatory reasons for its action, and
if the agency does so, appellant must show, by a preponderance of the
evidence, that the agency's reasons are a pretext for discrimination.
Id.
The Commission notes that the McDonnell Douglas analysis need not
be adhered to in all cases. In appropriate circumstances, when the
agency has established legitimate, nondiscriminatory reasons for its
employment decision, the trier of fact may dispense with the prima
facie inquiry and proceed to the ultimate stage of the analysis,
that is, whether the complainant has proven by preponderant evidence
that the agency's explanations were a pretext for actions motivated
by prohibited discriminatory animus. See United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711 (1983). Given that the agency
acknowledged, in its final decision, that appellant established a prima
facie case of discrimination and reprisal, we will proceed with this
analysis.
The agency stated that appellant did not see a sufficient number of
patients each day to justify a higher rating. Specifically, while the
agreement with the union specified that appellant would see 5 patients,
appellant saw, on average, only 3.1. Appellant asserted that she had been
advised that her performance was fine; however, appellant acknowledged
that she was also told she needed to increase her patient load. The EEO
Counselor confirmed that the Chief and appellant's supervisor expressed
concerns regarding the number of patients appellant was seeing after
her previous rating. While the EEO Counselor and one of appellant's
co-workers opined that there was no significant difference in the number
of patients seen by appellant and the number seen by the Comparative,
the record reveals that the comparative saw 1.7 more patients per day,
on average, than did appellant. Further, there is no evidence that either
appellant's co-worker or the EEO Counselor was in a position to evaluate
her performance as well as her Supervisor and the Chief. Appellant has
not shown that her evaluation was undeserved based upon her performance.
Therefore, the Commission finds that appellant failed to prove, by a
preponderance of the evidence, that she was subjected to race, color,
and reprisal discrimination with regard to her performance rating.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to affirm the agency's final decision of
no discrimination based on race, color, and reprisal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 THIRTY (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. 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 (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:
September 10, 1999
DATE Carlton M. Hadden
Acting Director
Office of Federal Operations