0120063708
01-16-2007
Reecia R. Thompson, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Reecia R. Thompson,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 01200637081
Agency No. P989509
DECISION
On June 3, 2006, complainant filed an appeal from the agency's May 4,
2006 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. 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 decision.
At the time of events giving rise to this complaint, complainant worked as
Assistant Director of Nursing at FMC-Fort Worth, Texas. On May 29, 1998,
complainant contacted an EEO Counselor and filed a formal EEO complaint on
July 7, 1998, alleging that she was discriminated against on the basis of
race (African-American) and in reprisal for prior protected EEO activity
(arising under Title VII) when:
1. She was excluded from supervisory meetings and withholding of job
related information between April 2, 1995 and May 1, 1998;
2. Her ability to participate in performance evaluations of subordinate
nurses for the period ending May 1, 1998, was removed;
3. She was not provided advance notice of a tornado drill on April 23,
1998, while White staff were given notice; and
4. She was given a low evaluation on a performance appraisal in May 1998
(lower than past evaluations of "Exceeds" and "Outstanding").
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that she was
subjected to discrimination as alleged.
As to issue (1), the FAD found the following: the Director of Nursing
(DON) stated that she had significant problems working with complainant
given complainant's reticence to talk with her, and complainant's
accusations regarding other supervisors during staff meetings. The DON
stated that a big part of the conflict was due to the fact that in the
past, complainant had been in an acting role as Director of Nursing, but
did not get that position permanently. The DON stated that complainant
had only been rated higher in the past because she had intimidated
her supervisor. The DON stated that she rated complainant accurately
to reflect her performance.
As to issue (2), the FAD found the following: complainant's rating
authority over four supervisory clinical nurses was removed because the
DON felt complainant was abusive to the nurses, particularly one nurse
(N1). The DON stated for instance, that complainant called N1 "crazy",
"mentally ill", and "mentally incompetent." Additionally, the DON stated
that complainant refused to schedule N1 to work every other weekend,
despite the DON's instruction to do so. Additionally, the DON stated
that complainant called the nurses "liars" and did not support the staff.
The DON stated that in order to prevent the supervisory nurses from
leaving, she decided to do their ratings herself.
As to issue (3), the FAD found the following: tornado drills are
performed on a quarterly basis. The DON stated that although she did
not recall the drill, she did not inform the staff about the drill, nor
specifically exclude complainant. As to issue (4), the FAD found the
following: the DON stated that complainant was included in all meetings,
and job information was not deliberately withheld from her. The record
includes an email from the DON to complainant, asking if she could attend
a meeting on March 18, 1998. Some of the individuals who were interviewed
in the investigation stated that meetings were held without complainant.
N1 testified that complainant was not included in several meetings
because complainant had been given other job responsibilities that
were not directly related to nursing. N1 stated that while complainant
maintained her title as Assistant Director of Nursing, she did not retain
the same responsibilities.
As to pretext, the FAD then noted that complainant alleges that the
DON is racist because when the DON first came from Rochester to the
facility in question, she stated that this staff is "so different from
Rochester" and that she was hoping to "have a staff like Rochester."
Complainant believed this to be racist since the DON's staff at Rochester
was all White. In addition, complainant asserts that she believes
the DON is racist because of how she treated her, and how she yelled
at her and another Black nurse in front of the inmates - something
she did not do to White staff members. Complainant also asserts that
the DON introduced candidates she was interviewing to the White staff,
and not the Black staff. The FAD further notes that the DON believes
complainant is prejudiced against Whites, noting that when she first
started the job, complainant asked her how many African-Americans were
in the Rochester office. The DON stated that she felt race was an issue
for complainant from the beginning. The DON further stated that she
was ready to leave the job because of complainant; that complainant was
consistently antagonistic and did not support the staff.
The FAD further states that a nurse (N1) admitted to having made the
statement in the past that she and another employee would have to "n-----
rig it." According to the Associate Warden of Operations, however,
disciplinary action was taken against N1. The FAD found that some of
the staff (both Black and White) who were interviewed stated that they
had problems with the DON, as a manager. The FAD further found that a
Black nurse testified that she wrote a memorandum to the Associate Warden
concerning the manner in which the DON spoke to complainant; a Material
Handler Supervisor also testified that everyone the DON has problems with
is African-American; and a Religious Services Technician stated that the
DON is prejudiced against African-American women. The FAD found that
the Captain's Secretary testified that there was a personality conflict
between complainant and the DON because complainant stands up for what
she believes in. The Chief Medical Records Administrator stated that she
does not think complainant's allegations are justified. The Associate
Warden of Operations stated that he believes there are racial issues in
the Medical Department, and gave as an example N1's reference to "n-----
rigging" equipment. He also stated that the Director of Medical Records
told other board members not to hire "those types of people" where the
candidates they were interviewing were African-American. The FAD noted
that a White Supervisory Nurse apparently took some action to intervene
in the issues raised by complainant because he felt there was a racial
problem, and he was fired shortly thereafter by the DON, with approval
from the Warden.
Ultimately, the FAD found no discrimination as to the issues in this case.
Specifically, the FAD found that there are legitimate, nondiscriminatory
reasons for the actions, and that complainant has not shown that the
actions were motivated by her race. The FAD further found that the record
supports the conclusion that there was a serious personality conflict
between the DON and complainant. As to retaliation, the FAD found that
there was insufficient evidence in the record to support the notion that
complainant's complaints about previous managers caused her new manager
(the DON) to retaliate against her. The FAD further noted that it is
clear based on the record that "there were racial tensions in the office
which influenced how people perceived certain actions. The facts here
suggest that the EEO office should evaluate and determine whether EEO
counseling and instruction may be appropriate for the employees in the
office, including [the DON]." FAD, at 15-16.
Complainant has raised no new arguments on appeal. The agency
requests that we affirm the FAD. As this is an appeal from a decision
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, �
VI.A. (November 9, 1999). (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").
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
In this case, we will assume arguendo that complainant established a
prima facie case of discrimination on the alleged bases. As to (1),
the agency has articulated legitimate, nondiscriminatory reasons;
namely, the DON denied that complainant was excluded from meetings.
Some witnesses stated that they could not recall complainant being
excluded, and others did recall that such was the case. For instance,
N1 testified that complainant was not included in several meetings,
however, she stated that this was because complainant had been given
other job responsibilities that were not directly related to nursing.
We note that the record does not clearly indicate what complainant's
responsibilities were at the relevant time and/or whether she missed any
meetings that she needed to attend to obtain job-related information.
It is complainant's burden however, to prove by a preponderance of the
evidence, that she was intentionally excluded from specific meetings
because of management's race-based hostility, and the record is simply
inadequate to make such a finding.
As to (2), the agency has articulated legitimate, nondiscriminatory
reasons; namely, the DON stated that complainant was not permitted
to participate in performance evaluations of subordinate nurses for
the period ending May 1, 1998 because complainant was abusive to
N1, complainant refused to schedule N1 to work every other weekend,
despite the DON's instruction, and because complainant called the
nurses "liars" and did not support the staff. Although it is surely
a matter of perception as to whether complainant was verbally abusive
to her subordinates, the evidence of record does not indicate that the
DON's statement that she felt complainant was abusive, and that she
removed complainant's rating duty for this reason, is mere pretext for
discrimination.2
As to issue (3), the DON has articulated legitimate, nondiscriminatory
reasons; namely, that staff should not be told about drills because
there would be no reason to have a drill if everyone expects it.
Complainant asserts that others knew about it, and this is corroborated in
the record. It appears however, that some of the people who were warned
about the drill were given such warning by managers other than the DON.
Here again, the record is inadequate for a finding that complainant
was intentionally not told about the drill because the DON harbored
discriminatory or retaliatory animus toward her.
Regarding issue (4), the agency has articulated legitimate,
nondiscriminatory reasons; namely, concerning the evaluation rating, the
DON states that she had significant problems working with complainant
given complainant's reticence to talk with her, and complainant's
accusations regarding other supervisors during staff meetings. The DON
noted that she felt that the reason for complainant's inappropriate
conduct was that in the past she had been Acting Director of Nursing,
but the DON was selected for that position permanently instead. The DON
stated that complainant had been rated higher in the past because she had
intimidated her supervisor. The DON stated that she rated complainant
accurately to reflect her performance. The record does not indicate
by a preponderance of the evidence, that the reason is a pretext for
discrimination.
In finding that complainant has not established pretext as to any issue
in this case, we note that there is substantial evidence in the record
to indicate that the DON and complainant had a personality conflict,
perhaps due to the fact that complainant "speaks her mind" as well as
because complainant acted in the DON's position prior to this DON's
arrival at the facility. Additionally, we note that we do not have the
benefit of an AJ's findings after a hearing, as complainant chose a FAD
instead, and we can only evaluate the facts based on the weight of the
evidence presented to us. Accordingly, we cannot find discrimination
in this case. Nevertheless, we are disturbed by this record, as it
appears there are significant racial problems at this facility, and we
highly recommend that the agency implement the FAD's suggestion that
EEO training may be appropriate for the employees of this facility.
After a careful review of the record, 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:
January
16,
2007
______________________________ _________________
Carlton M. Hadden, Director
Date
Office of Federal Operations
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
2 We note that it is not surprising that complainant would have
difficulty interacting with N1, given complainant's knowledge of N1's
past use of the racial epithet described above. Nevertheless, that
issue is not before us in this case. The only question is whether the
DON's real reason for removing the rating duty from complainant, was the
stated reason, or was a pretext for discrimination. The record simply
does not indicate that complainant's race, as opposed to her treatment
of the nurses, was the reason the action was taken.
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0120063708
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036