0120092194
07-14-2011
Ruby B. LaMell, Complainant, v. Timothy Cox, Chief Operating Officer, Armed Forces Retirement Home, Agency.
Ruby B. LaMell,
Complainant,
v.
Timothy Cox,
Chief Operating Officer,
Armed Forces Retirement Home,
Agency.
Appeal No. 0120092194
Agency No. AFRH 05-02
DECISION
On February 3, 2009, Complainant filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from an undated final Agency
Decision (FAD) 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 Commission deems the appeal timely and accepts it pursuant to 29
C.F.R. § 1614.405(a).
ISSUES PRESENTED
Whether Complainant was discriminated against based on her color (light
skinned black) when on February 3, 2005, she was placed on administrative
leave and escorted from work.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Nursing Assistant at the Agency’s Armed Forces Retirement Home
in Gulfport, Mississippi. She filed an EEO complaint alleging the
above issue.
At the conclusion of the investigation, the Agency provided Complainant
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). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
On appeal, the parties make no comment.
ANALYSIS AND FINDINGS
On February 3, 2005, co-worker 1 (identified herself as light skinned
black)1 advised the Agency that co-worker 2 told her Complainant
threatened to stab co-worker 1 in the face if she saw her anywhere
outside the workplace. On February 3, 2005, Agency security escorted both
Complainant and co-worker 1 off the premises. Both were placed on paid
administrative leave. According to Complainant, co-worker 1 returned
to work three days later. Complainant remained on paid administrative
leave until her separation.
On March 3, 2005, the Agency proposed removing Complainant on various
grounds. The proposal was rescinded and another proposed removal was
issued on August 10, 2005. The event of February 3, 2005, was included
in the specifications against Complainant in the proposed removal.
Hurricane Katrina destroyed the retirement home in late August 2005.
Effective February 18, 2006, Complainant was terminated via a reduction
in force (RIF). The RIF letter explained that the facility where she
worked as a nursing assistant could no longer provide residential and
healthcare services to its veteran residents due to damage caused by
Hurricane Katrina. The letter stated the separation was involuntary and
not for cause. In LaMell v. Armed Forces Retirement Home, EEOC Appeal
No. 0120063272 (October 18, 2007), the Commission ordered the Agency to
investigate and process the claim that Complainant was discriminated
against based on her color when on February 3, 2005, she was placed
on administrative leave and escorted from work. The Commission ruled
that the Agency was not required to process the proposed removal and
RIF matters.
On remand, co-worker 2 made a declaration that Complainant told her she
was going to stab co-worker 1 in the face. Co-worker 1 made a declaration
that on February 3, 2005, she reported this threat to Agency security
and management. Co-worker 1 also stated that some months before, she
had a verbal dispute with Complainant, who then followed her outside to
the parking lot and threw a cup of ice at her. This alleged incident
occurred on December 24, 2004, and was reported to management.
Complainant denied ever making a verbal threat toward co-worker 1, or
making any gesture that could be interpreted as a physical threat toward
her. Complainant alleged she was treated differently from co-worker 1.
She attacked the credibility of co-worker 1, submitting evidence she
was once arrested. Complainant also contended co-worker 1 was accused
of abusing a patient in 2004, but was not removed. Complainant wrote
that co-worker 2 made a false statement probably because co-workers 1
and 2 are best friends. Complainant submitted numerous references on
her good character.
A Human Resources Specialist, who works with the Department of Treasury
but services the Agency, stated that he believed he advised Agency
management to place Complainant on administrative leave, and this
was standard practice in such a situation. He stated that escorting
Complainant from the premises and placing her on administrative leave
was basic standard practice, and it was for the safety and security of
the facility and other employees.
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
The record reflects that the Agency placed Complainant on administrative
leave because it received a report that she threatened to stab co-worker
1 in the face. The record also shows that co-worker 1 reported a recent
prior incident where Complainant allegedly threw a cup of ice at her.
Complainant contends that the Agency’s reason is pretext to mask
discrimination. She contends that co-worker 1 was treated better.
Co-worker 1 was not similarly situated. She was the alleged victim,
not the alleged perpetrator. Also, co-worker 1 identified herself as
a light skinned black, i.e., the same protected group as Complainant.
Complainant denies threatening co-worker 1, attacks her credibility,
and submits a number of references on Complainant’s good character.
We do not rule on whether Complainant made the alleged threat. However,
given the reports by co-workers 1 and 2, Complainant has not shown that
the Agency was motivated by discrimination when it escorted her from the
premises and placed her on administrative leave. We also note that the
Agency put Complainant on paid administrative leave, not unpaid leave.
This also suggests a non-discriminatory motive.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 14, 2011
__________________
Date
1 Complainant wrote co-worker 1 had dark black skin.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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