0320080022
03-04-2008
Sarah McDougald, Petitioner, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Sarah McDougald,
Petitioner,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320080022
MSPB No. DC0752070818I1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of a Final Order issued by the Merit Systems
Protection Board (MSPB) concerning her claim of discrimination alleging
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
Petitioner alleged that she was discriminated against on the basis of sex
(female) when she was removed from her position of Nursing Assistant,
GS-0621-05, at the agency's Hampton, Virginia Medical Center, on charge
of violating the agency's policies relative to patients. Briefly,
petitioner admitted to borrowing money from a patient in the agency's
Spinal Cord Injury unit, a long term care facility for veterans with
serious physical impairments.1 Patients in this unit rely on staff
to provide medical and basic daily care such as feeding, bathing and
toileting. In a statement provided in the record, the Medical Center
Director said that the agency's policy dictating the maintenance of
strict professional boundaries is "paramount for the provision of care
to those who can't care for themselves. These patients place a great
deal of trust in their caregivers which makes them extremely vulnerable
to persons like [petitioner]..." Petitioner also conceded that she was
aware of the agency's policies prohibiting engaging in financial dealings
with patients. She had received prior counseling for an earlier violation
of the policy.
Petitioner withdrew her request for a hearing and thereafter a MSPB
Administrative Judge (AJ) issued an initial decision upholding the removal
decision and finding no discrimination. Petitioner had argued that she
was treated more harshly than four named male employees, who she alleged
had also violated the policy. However, the AJ found that the deciding
official in the instant case was not hired by the agency as the new
Director of the medical center until October 2007, and so was not the
deciding official for the matters concerning to alleged comparators.
Therefore, the AJ concluded petitioner was not similarly situated to
the comparators, and could not establish disparate treatment.
As petitioner did not seek review of the initial decision, it became
the Board's final decision. Petitioner then filed the instant petition.
EEOC regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Based upon a thorough review of the record, it is the decision of
the Commission to concur with the final decision of the MSPB finding
no discrimination. The Commission finds that the MSPB's decision
constitutes a correct interpretation of the laws, rules, regulations,
and policies governing this matter and is supported by the evidence in
the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
March 4, 2008
__________________
Date
1 The record contains a memorandum for the agency's Administrative
Board of Investigation summarizing its findings concerning the charge.
The memorandum indicates that a patient, who had resided on the Spinal
Cord Injury unit for 20 years, alleged he loaned money to petitioner
on three separate occasions in the amount of $800, $600 and $1,200. He
complained to the nurse manager when petitioner failed to repay him the
money on the terms he felt they had agreed upon. He apparently provided
investigators with a hand-written promissory note signed by petitioner
and dated February 23, 2006.
??
??
??
??
2
0320080022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320080022