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