0120064520
05-05-2008
Kettly Duroseau, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Kettly Duroseau,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200645201
Hearing No. 350-2004-00054X
Agency No. 200305052003103
DECISION
On July 20, 2006, complainant filed an appeal from the agency's July
13, 2006, final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
for the agency at its Albuquerque, New Mexico Veterans Affairs Medical
Center as a Registered Nurse 2, Step 5. On July 17, 2003, complainant
filed an EEO complaint alleging that she was discriminated against on
the bases of race (African-American), color (black), national origin
(Haitian) age (D.O.B. 04/25/53), and in reprisal for prior protected
EEO activity [arising under Title VII] when, on or about May 20, 2003,
she was issued a proposed termination that was subsequently sustained.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's April 7, 2006 motion for a decision without
a hearing and issued a decision in favor of the agency on May 31, 2006.
In his decision, the AJ found that complainant failed to establish a
prima facie case of discrimination on the bases of race, national origin
or age, noting that the comparators whom complainant identified were not
similarly situated. Specifically, unlike complainant, none of them had
confirmed instances of patient abuse pursuant to the conclusion from
the Board of Investigation. The AJ found however, that complainant
had established a prima facie case of reprisal. The AJ noted that
it is undisputed that the Nurse Executive who issued complainant her
proposed removal, and the Acting Director and Chief of Staff, who signed
complainant's removal letter were aware of complainant's EEO activity
at the time of these respective actions.
The AJ further found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
maintains that subject to a Board of Investigation finding, complainant
was found to have been guilty of patient abuse. The alleged abuse
consisted of the following: on January 18, 2003, while assigned to
the care of a particular patient, complainant told the patient that he
was to lie in bed and stay there or complainant would tie him down to
the bed and/or move him to a psychiatric ward. In addition, when this
patient requested to get up and go to the bathroom complainant said no,
put him in a diaper and told him to go in the diaper rather than offering
a bedpan, a bedside commode or assisting him to ambulate to the bathroom.
Finally, although complainant documented that the patient was disoriented,
confused at times and at high risk for falls, complainant took no other
action than to raise side rails for patient safety when she could have
moved him to a room closer to the Nurse's Station where he could have
been observed closely and checked more frequently, or to a single room
whereby his daughter-in-law could have stayed with him as she had offered
to do earlier. Accordingly, complainant was removed from employment
for this reason.
The AJ noted that complainant asserts that the Nurse Executive (who
was aware of complainant's prior EEO activity) appointed the Board of
Investigation members, was directly involved with the investigation
of the alleged patient abuse, and negatively influenced the findings
against complainant so that the deciding official, the Acting Director
and Chief of Staff, was predisposed to uphold the termination. The AJ
found however, that complainant has not proffered even a scintilla of
evidence to support these claims.
The AJ also noted that complainant asserts that she was retaliated
against when the May 20, 2003, proposed removal letter referred to prior
discipline which was supposed to have been purged from complainant's
personnel file pursuant to an August 31, 2001 EEO settlement agreement.
However, the AJ noted that once brought to the agency's attention
the proposed removal letter was amended to delete any reference to
prior discipline and reissued on June 4, 2003. The AJ noted that the
important fact is that complainant has not proffered any evidence that
the agency's decision to propose her removal and ultimately terminate
her employment was based in any way on her previous disciplinary record.
The AJ found that a confirmed instance of patient abuse was attributed to
complainant resulting in her removal from employment. The AJ explained
that complainant has not proffered any evidence that her previous
disciplinary record made any difference in her ultimate removal from
employment making the May 20, 2003, reference to prior discipline moot.
The AJ found that in other words, complainant would have been removed
regardless of whether her previous disciplinary history was considered or
not and complainant has not proffered any evidence to conclude otherwise.
The AJ found no evidence of pretext in the record. Accordingly, the AJ
found no discrimination. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that she was
subjected to discrimination as alleged.
Complainant raises no new arguments in support of her appeal. The agency
asks the Commission to affirm the final order. In rendering this
appellate decision we must scrutinize the AJ's legal and factual
conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be
reviewed de novo"). This essentially means that we should look at this
case with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
The allocation of burdens and order of presentation of proof in an
ADEA or Title VII case alleging disparate treatment discrimination is a
three step procedure: complainant has the initial burden of proving, by
a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, assuming complainant could establish a prima facie case of
discrimination on the alleged bases, the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
management terminated complainant after having reviewed the findings
of a Board of Investigation, because the allegation that complainant
had committed an instance of patient abuse, was substantiated. In an
attempt to establish pretext, complainant points out that the patient
in question was confused and had a fever at the time that the incident
allegedly occurred, and that the patient's daughter-in-law, who lodged
the complaint, was not present when the abuse supposedly occurred.
For purposes of this decision, we assume arguendo that complainant did
not commit the alleged patient abuse. Even so, complainant has still
failed to show that management intentionally found that the abuse had been
substantiated by the Board's findings, in order to discriminate/retaliate
against complainant. Although complainant asserts that the abuse could
not conceivably be viewed as substantiated by the Board's findings given
the "inconsistencies" amongst the affidavits, we do not discern any such
material inconsistencies. Moreover, complainant has failed to show that
the investigation was conducted in a manner intended to discriminate
against her.2
In addition, we address briefly complainant's contention that the proposed
removal letter referred to prior discipline which was supposed to have
been purged from complainant's personnel file pursuant to an August 31,
2001, settlement agreement. The record shows that once brought to the
agency's attention, the proposed removal letter was amended to delete
any reference to prior discipline, and was reissued on June 4, 2003.
The final removal letter did not contain any improper reference.
The inclusion of references to this prior discipline in the initial
removal letter is inadequate, by itself, to prove that the ultimate
removal action was motivated by retaliatory animus.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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
(S0408)
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 (Z0408)
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
May 5, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record indicates that the Board of Investigation interviewed
the following individuals: complainant (who stated that she did not
recall the particular patient at all); the patient's daughter-in-law,
who was the power of attorney, and who had spoken to the nurse manager
about the situation and written the Report of Contact; the staff
who preceded and followed complainant's shift at issue; the nurse
manager on 5-A where complainant had previously worked, and the nursing
supervisor who was on that night as well, in order to determine whether
there had been previous/similar complaints lodged against complainant.
Although complainant asserts that the Board failed to interview any other
nurses on her shift, she has not shown that these individuals would have
been able to provide any relevant information, particularly given that
the alleged abuse occurred with no witnesses present. Additionally,
management states that it is the Director (with consultation from Human
Resources) who appoints the members of the Board of Investigation,
and complainant has not presented evidence that the Nurse Executive
who proposed her termination, had appointed or influenced the Board of
Investigation members in this instance.
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0120064520
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036