01A24681
09-03-2003
Henrietta Coleman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Henrietta Coleman v. Department of Veterans Affairs
01A24681
September 3, 2003
.
Henrietta Coleman,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24681
Agency No. 200K-1759
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Part-Time Ward Secretary, GS-5, at the agency's VA Medical Center,
located in Hines, Illinois. Complainant sought EEO counseling and
subsequently filed a formal complaint on June 20, 2001, alleging that she
was discriminated against on the bases of race (African-American), color
(black), and in reprisal for prior EEO activity when her supervisor, the
Clinical Nurse Manager (S1), denied complainant overtime opportunities for
the past 1� years. Complainant later amended the complaint to include
the claim that she was retaliated against when the Chief of Medical and
Surgical Nursing (Chief) denied her request for reassignment to the 11th
ward and instead assigned her to the 15th ward.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In it's FAD, the agency found that complainant participated in EEO
activity in July 1999 and that S1 and the Chief were both aware of
complainant's prior protected activity. The FAD concluded that in regard
to (1) complainant failed to establish a prima facie case of race or
color discrimination. In reaching this conclusion, the agency found
that complainant failed to present evidence of a similarly situated
individual outside her protected class who was treated more favorably
under similar circumstances. The FAD found, however, that complainant
established a prima facie case of retaliation.
The FAD found that even assuming arguendo that complainant established
a prima facie case of race, color and reprisal discrimination, the
agency articulated a legitimate, nondiscriminatory reason for not
offering overtime opportunities to complainant. S1 testified that
she did not previously know that complainant desired to work overtime.
S1 testified that complainant had originally been a full-time employee,
and since February 2000, had been a part-time employee as a result
of complainant's request. S1 also testified that since switching to
part-time status, complainant frequently changed her tour of duty and
duty hours. According to S1, only employees who worked in excess of
8 hours per day or 40 hours per week were eligible to work overtime.
S1 testified that she explained to complainant that part-time employees
were only entitled to unscheduled hours. S1 testified that she had not
considered complainant for unscheduled hours because she had recently
switched to a part-time schedule for personal reasons. S1 apologized to
complainant and immediately began to provide complainant with unscheduled
hours. The FAD ultimately concluded that complainant failed to establish
that the agency's legitimate, nondiscriminatory reasons for its actions
were pretext for any of the alleged bases of discrimination.
In regard to (2), the FAD found that complainant established a prima facie
case of reprisal discrimination. The FAD also found that the agency
articulated a legitimate, nondiscriminatory reason for its action;
namely, the patient census levels and the need for a medical ward
secretary on the night shift necessitated the denial of complainant's
request to be reassigned to a specific ward. The FAD found that due to
the increasing number of patients and the changing staffing patterns,
the Chief was unable to accommodate complainant's request to be placed
in the 11th ward. The FAD ultimately determined that complainant failed
to establish that the agency's articulated legitimate, nondiscriminatory
reason was pretext for discrimination.
On appeal, complainant reiterates arguments previously made. The agency
requests that we affirm its FAD. As a preliminary matter, we note
that we review the decision on an appeal from a FAD issued without a
hearing de novo. 29 C.F.R. � 1614.405(a). To prevail in disparate
treatment claims such as these, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a
prima facie case by demonstrating that she was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
The Commission finds that with regard to (1) and (2), even assuming
arguendo that complainant established a prima facie case of race, color,
and reprisal discrimination, complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. In reaching this conclusion, we note
that there is nothing in the record to show that the agency's actions
were a result of unlawful animus towards complainant's protected bases.
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 FAD.
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
September 3, 2003
__________________
Date