01a50394
04-14-2005
Julia Clark, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Julia Clark v. Department of Veterans Affairs
01A50394
April 14, 2005
.
Julia Clark,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A50394
Agency Nos. 20030674, 2003101890
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 Staff Nurse at the agency's VA Medical Center in Temple,
Texas. Complainant sought EEO counseling and subsequently filed a formal
complaint on April 17, 2003, alleging that she was discriminated against
on the basis of reprisal for prior EEO activity when (1) on April 24,
2003, she was reassigned from Nurse Manager to Staff Nurse, and (2)
on June 3, 2003, she was given a �satisfactory� instead of a �highly
satisfactory� proficiency rating.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant had failed to establish
a prima facie case of retaliation because the agency found it difficult
to infer retaliation from a five year time lapse between the complainant's
prior EEO activity which occurred in 1998 and the adverse treatment that
took place in 2003. Notwithstanding this doubt, the agency analyzed the
reasons management set forth to justify its actions and determined that
they were adequate, non-retaliatory and backed by appropriate evidence.
The agency did not find that complainant had met her burden of disproving
the agency's motivations.
The claims stem from an incident that occurred in 2003 in which
complainant had been charged with patient abuse and neglect. The charge
was investigated by an Administrative Board of Investigation. The Board
concluded that the charge was unsubstantiated, but further found that
complainant had engaged in �discourteous conduct� toward the family
members of the patient. The Commission emphasizes that the merits
of the Board's conclusions are not at issue here. We strictly focus
our review on whether or not the agency was correct in finding that
the management did not retaliate against complainant for her prior EEO
activity when following the Board's investigation, the agency demoted
her and subsequently gave her a �Satisfactory� proficiency rating.
On appeal, complainant contends that the FAD should be reversed on
various grounds. First, the complainant argues that the record which
evolved from the EEO investigation is replete with material inaccuracies
and inconsistencies and that the EEO Investigator was biased in favor of
the agency. Second, complainant maintains that the agency's articulated
reason was vague and, as such, she was never given the opportunity to
challenge meaningfully the adverse action. Third, complainant argues
that the FAD is based on erroneous facts and an improper application
of law as it focused the retaliation analysis too closely on the time
lapse between the prior EEO activity and the retaliatory incident,
instead of focusing on the suspect actions of the RMO. See generally
Complainant's Supporting Statement (Appeal Brief). The agency, in turn,
requests that we affirm its FAD.
Although we are unsettled by the allegation of bias in the EEO
investigation, we do not find that the errors alleged, even if true,
caused complainant material harm sufficient to reverse the FAD. The EEO
Investigator is not an advocate for any of the parties or interests.
Having reviewed the report of investigation, we do not find that the
investigator was non-objective or as having formed an improper allegiance
with the agency.
We are disturbed however that complainant should allege that the
Investigator �failed utterly to contact and interview potentially
significant sources of evidence.� Appeal Brief at 3. Complainant argues
that the investigator never sought the testimony of comparison employees.
Comparative evidence must be sought in every case alleging disparity in
treatment on a protected basis. However, complainant had an opportunity
to review the investigative file before a final decision on the matter.
See EEOC Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at 6-22 (Nov. 9, 1999) (�agencies are
encouraged to allow complainants and their designate representatives
an opportunity to examine the investigative file and to notify the
agency, in writing, of any perceived deficiencies in the investigation
prior to transferring the case to the EEOC for a hearing or prior to
issuing a final decision without a hearing.�). The record reveals that
complainant did not object to the evidence when she received and reviewed
the investigative file. Complainant in essence sat on her rights.
She could have objected to the quality of the evidence, and she could
have requested a hearing so that an administrative judge could evaluate
the credibility of the evidence, but she did neither.
Finding no material errors in the EEO investigation, we review the
record as it stands de novo. The Commission has found that if, as here,
a complainant does not have direct evidence of discrimination, she
must establish at least a prima facie case of discrimination. See St
Mary's Honor Cntr. v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A complainant may
establish a prima facie case of disparate treatment on the basis of a
discriminatory factor by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in an adverse employment action. See Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978). Of particular significance
is evidence that the same management officials afforded more favorable
treatment to an employee outside of complainant's protected groups under
similar circumstances. See id. In order for such comparative evidence
to be probative of discrimination, all relevant aspects of complainant's
employment must be nearly identical to those of the comparative employee.
See O'Neal v. U.S.P.S., EEOC Request No. 05910490 (July 23, 1991).
If the complainant establishes a prima facie case, the burden of
production falls to the agency to establish a nondiscriminatory
reason for the challenged action. See Burdine, 450 U.S. at 253-54;
McDonnell Douglas, 411 U.S. at 802. If the agency articulates a
nondiscriminatory reason through admissible evidence, any prima facie
inference drops from the case. See Hicks, 509 U.S. at 507, 510-11.
The complainant then must prove by a preponderance of the evidence
that the proffered explanations are a pretext for discrimination.
See id. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411
U.S. at 804. Pretext can be demonstrated by �showing such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
[Agency's] proffered legitimate reasons for its action that a reasonable
fact finder could rationally find them unworthy of credence.� Morgan
v. Hilti, Inc., 108 F3d 1319, 1323 (10th Cir. 1997) (quotations omitted).
However, �mere conjecture that [the] employer's explanation is a pretext
for intentional discrimination is an insufficient basis for denial of
summary judgment.� Branson v. Price River Coal Co., 853 F.2d 768, 772
(10th Cir. 1988); see also George v. United States Postal Serv., EEOC
Appeal No. 01A31214 (July 28, 2003).
Complainant can establish a prima facie case of retaliation by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination. Shapiro v. Social Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)). Specifically, in a reprisal claim, according with the burdens
set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request
No. 05960473 (Nov. 20, 1997), complainant may establish a prima facie
case of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently, she
was subjected to adverse treatment by the agency; and (4) a nexus exists
between the protected activity and the adverse treatment. See Whitmire
v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 26, 2000).<1>
Assuming arguendo that complainant established a prima facie case of
retaliation, we find that the record supports the agency's reasons for
demoting complainant to Staff Nurse. We do not agree with complainant
that the reasons were vague. According to the Director, whom complainant
admittedly views as credible, �the Board ... made a recommendation that
included a reassignment, and I concurred with ... their recommendations.�
Affidavit of Director, at 4:9-12. After agreeing to follow through with
the Board's decision and following agency policy, the Director instructed
the RMO and the Human Resources Officer in a letter dated April 23,
2003, to implement the Board's recommendations. See id. at 8:5-9.
Upon receipt of these instructions and after consulting with the Human
Resources Officer, the RMO (complainant's then immediate supervisor)
ordered complainant's demotion as recommended in the Director's letter.
Complainant, on her part, failed to present evidence that more likely
than not, the agency's articulated reasons for its actions were a pretext
for discrimination. Complainant states that the inconsistencies in
statements by management indicate pretext. See Appeal Brief at 5-6.
However, we do not find any material inconsistencies or contradictions
that would make a reasonable fact finder-finder rationally conclude that
they are unworthy of credence.<2>
With regard to the proficiency rating, we again find that the agency
articulated a legitimate, non-retaliatory reason for the rating.
Complainant concedes that complainant's direct supervisor gave complainant
the rating and that the RMO, as Nurse Executive, signed off on it.
Complainant received a �Satisfactory� rating, which means the employee
�has met all criteria and at times exceeds expectations.� Proficiency
Report for period 6/4/02 - 6/4/03. Complainant's direct supervisor,
who gave the rating, stated in the proficiency report that complainant
had completed all mandatory training and was �in the process of orienting
[herself] to her new role and developing the necessary competencies to
function effectively in that area.� Id. The RMO further explained,
�anybody ... in the nursing service, when they change jobs, it would be
an expectation that there would be an adjustment period ... learning the
new role, learning the expectations of the new role, getting oriented
to the new area in order to be able to perform to a higher level.�
Affidavit of RMO, at 11:16-22.
Complainant, on the other hand, does not provide any evidence showing
that the reasons for giving her a �Satisfactory� rating were pretexual.
Viewing the evidence objectively, we cannot find a retaliatory motive
behind the decision to give complainant the rating. Complainant only
states that the RMO was upset, even after five years, for being held as
the responding official to her 1998 complaint. She further argues that
the RMO was unable to retaliate against her earlier because another
supervisor stood above him, overseeing how he rated complainant.
These assertions however are conjectures at best. No objective
evidence has been presented to substantiate complainant's allegations.
We are also persuaded that no retaliatory animus motivated the rating
because the RMO was not the person who actually rated complainant, and
no evidence exists on the record to suggest that the direct supervisor
who gave the rating knew of complainant's prior EEO activity. Thus,
based on the evidence at hand, complainant failed to prove pretext.
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:
April 14, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Complainant in her appeal goes to great
lengths discussing the forth prong of the analysis. Typically, �nexus�
is demonstrated by evidence that: (1) the adverse action occurred
shortly after the protected activity, and (2) the person who undertook
the adverse action was aware of the complainant's protected activity
before taking action. Complainant is correct to state that the lack
of temporal proximity is not dispositive for a finding of retaliation.
Cf. Clark County School Dist. v. Breeden, 532 U.S. 268 (2001) (noting
that �cases that accept mere temporal proximity between an employer's
knowledge of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case uniformly
hold that the temporal proximity must be �very close,� and concluding
that action taken �20 months later suggests, by itself, no causality
at all.�). The Commission's policy on retaliation prohibits any adverse
treatment that is based on a retaliatory motive and is reasonably likely
to deter the complainant or others from engaging in a protected activity.
See EEOC Compliance Manual Section 8, "Retaliation" No. 915.003, at 8-13
(May 20, 1998).
2 We have also reviewed the witness statement by the vice-president
of AFGE Local 2109, submitted by complainant to the Commission on March
15, 2005. However, we find that this evidence does not aid complainant
in proving that management's reasons for demoting her were pretextual,
masking retaliation for her prior filing of an EEO complaint. The witness
statement addresses the incident investigated by the Administrative Board
of Investigation, it does not address complainant's claims of retaliation,
which are at issue here before the Commission.