Patricia A. Belton, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 4, 2001
01991353 (E.E.O.C. Dec. 4, 2001)

01991353

12-04-2001

Patricia A. Belton, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Patricia A. Belton v. Department of Veterans Affairs

01991353

December 4, 2001

.

Patricia A. Belton,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01991353

Agency No. 97-1253

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. Complainant alleged that she was discriminated

against on the bases of race (Black) and sex (female) when she was

reassigned from her position as a medical clerk to mail clerk position

after being cleared of charges of patient abuse.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a Medical Clerk GS-4 at the agency's Medical Center in

Birmingham, Alabama. Believing she was a victim of discrimination,

the complainant sought EEO counseling and subsequently filed a formal

complaint on April 1, 1997. At the conclusion of the investigation,

the 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 the 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 final decision, the agency concluded that the complainant failed

to establish a prima facie case of race or sex discrimination because she

did not name any similarly situated employees outside of her protected

class who were treated more favorably than she was. The agency disputed

that the one employee (White, female) whom the complainant did name,

was similarly situated because she was a nurse and worked under the

supervision of a different individual.

Even assuming the complainant had established a prima facie case

of discrimination, the agency concluded that it gave a legitimate

non-discriminatory reason for reassigning her as a mail clerk, namely,

that her actions towards a patient were potentially harmful and that

her inappropriate behavior was unacceptable for an intensive care unit.

On appeal, neither the complainant nor the agency made any additional

statements.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For the complainant to prevail, she must first establish a prima

facie case 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. McDonnell Douglas, 411 U.S. at 802. The burden then shifts

to the agency to articulate a legitimate, nondiscriminatory reason for

its actions. The complainant must then demonstrate that the agency's

reasons are not the true reasons for its actions but a pretext for

discrimination. Id.

In this case, the Commission finds that the complainant failed to

establish a prima facie case of race or sex discrimination because she

failed to demonstrate that similarly situated employees outside of her

protected class were treated more favorably than she was or based on

other evidence, there existed an inference of discrimination based on

race or sex. The record indicates that the complainant was initially

accused by the nurse manager in the Surgical Intensive Care Unit (SICU)

of poking a seriously ill patient in the arm with a writing pen and

speaking loudly to him, saying, �Hello, hello,...how are you?... Do you

remember me?� Based on these facts, the complainant was investigated by

a hospital board for patient abuse but was eventually cleared of abusing

the patient. During the investigation, the complainant was reassigned

from the SICU to a position under the Chief of Ward Administration as

a mail clerk at the same grade level. Although she had been verbally

promised to be returned to SICU, the hospital board recommended that

she not be reassigned to patient care because her erratic behavior

and inappropriate conduct aside from the incident in question, was not

conducive to the intensive care unit.

The complainant alleged in response, that a nurse not of her protected

class, had also been investigated in the past but was allowed to continue

working on the patient care units. She failed to refute, however, that

this employee was not similarly situated because she held a different

position and was supervised by a different chain of command. Even so,

the complainant failed to establish an inference of sex discrimination

aside from the broad pronouncement that she would have been treated

differently if she was a man.

Even assuming the complainant established a prima facie case, the

Commission finds that the complainant failed to present evidence that

more likely than not, the agency's articulated reasons for its actions

were a pretext for discrimination. We reach this conclusion because

the complainant failed to dispute specific evidence from the Nurse

Manager and another registered nurse in the SICU that the complainant

had significant performance problems in the past, which contributed

to her not being assigned back to patient care. Moreover, the Nurse

Manager gave detailed testimony of inappropriate behavior on the part

of the complainant including incidents of open defiance and hostility

in response to her questions and instructions during the complainant's

tenure in the SICU. The registered nurse gave corroborating testimony

stating that the complainant became �ballistic� when she was asked to

leave the room after the incident in question.

The only evidence presented by the complainant to support her claim of

race discrimination consisted of testimony that she was the only black

employee on the SICU. In addition, the two witnesses who were somewhat

sympathetic to the complainant's position gave no evidence that race or

sex were motivating factors in the decision not to send the complainant

back to SICU. In sum, the complainant failed to show, by a preponderance

of the evidence, that the agency's reasons for maintaining her assignment

as a mail clerk were a pretext for discrimination based on her race

or sex.

CONCLUSION

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 agency's

final decision.

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

December 4, 2001

Date