0120073323
11-15-2007
Jacqueline F. Newbold-Reese, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Jacqueline F. Newbold-Reese,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073323
Agency No. 200P-0691-2006102950
DECISION
Complainant timely initiated an appeal from the agency's final decision concerning her equal employment opportunity (EEO) complaint alleging 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.
During the relevant time, complainant was employed as a Nurse Recruiter, Nurse III, at the agency's Veterans Affairs Greater Los Angeles Healthcare System in Los Angeles, California.
On August 16, 2006, complainant filed the instant formal complaint. Therein, complainant claimed that she was discriminated against on the basis of reprisal for prior EEO activity when:
(a) on May 30, 2006, management used unauthorized/unofficial tools to develop a new Functional Statement, which resulted in a lowered proficiency rating; and
(b) on June 5, 2006, management denied her the essential tools critical to successful performance of her Nurse Recruiter position, by not appointing her to the VISN Chartered Committee to develop strategies for recruiting and retaining nurses.
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. Initially, complainant requested a hearing. Subsequently, complainant withdrew her hearing request and requested that the agency issue a final decision.
In its June 19, 2007 final decision, the agency found no discrimination. The agency found that management articulated legitimate, nondiscriminatory reasons for its actions, which complainant did not prove were pretext for reprisal discrimination. The agency found in regard to claim (a), complainant's first-level supervisor (S1) stated that she was instructed to view complainant's previous proficiency and noted "that a Nurse II template had been used. It had been labeled Nurse III, but the language in the document was over 99% that of a Nurse II." S1 stated that because complainant was previously erroneously evaluated under the Nurse II functional statement, it was necessary to develop a new functional statement for complainant. S1 stated that complainant's proficiency rating "was never lowered." Specifically, S1 stated that when she evaluated complainant as a Nurse III, she "achieved a satisfactory rating." Furthermore, S1 stated that complainant's prior protected activity had nothing to do with her proficiency rating.
The Associate Director for Nursing and Patient Care Services (AD) stated that management developed a new functional statement for complainant because "the scope of practice/functional statement was constructed erroneously by previous supervisor utilizing Nurse II qualification standards versus Nurse III. [Complainant] is a Nurse III."
Regarding claim (b), S1 stated that she did now know that the VISN Chartered Committee existed until after complainant informed her that she was not appointed to the committee. S1 further stated that "being a participant on the committee is not an essential tool. However, I did get her appointed to the committee because it is important for the VISN to work together and all should be informed."
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).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant did not prove were a pretext for discrimination, and that complainant has not demonstrated that these reasons were a pretext for discrimination.
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 (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
November 15, 2007
__________________
Date
2
0120073323
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120073323