01991574
06-20-2000
Sharon K. Mitchell, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Sharon K. Mitchell, )
Complainant, )
)
v. )
) Appeal No. 01991574
Togo D. West, Jr., ) Agency No. 97-1999
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from an agency's decision
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts
the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission AFFIRMS the agency's decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has established, by
a preponderance of the evidence, that the agency discriminated against
her on the bases of disability (unspecified) and reprisal.
BACKGROUND
During the relevant time, complainant was an EEG Technician at the
agency's Clement J. Zablocki Medical Center in Milwaukee, Wisconsin.
In July 1996, complainant allegedly lost duties with regard to the Sleep
Clinic and EMGs, was required to page a supervisor when others were not,
and was shunned by co-workers and supervisors. Believing she was a
victim of discrimination based on disability and reprisal, complainant
filed formal complaint dated August 12, 1996.
Following an investigation, 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 complainant failed to
respond within the time period specified in 29 C.F.R. �1614, the agency
issued a final decision on July 20, 1998.
In its decision, the agency concluded that the record did not substantiate
complainant's claims of discrimination based on disability or reprisal.
Specifically, with respect to her claim of disability discrimination, the
agency indicated that complainant failed to establish a prima facie case.
According to the agency, there was �no evidence that complainant had or
was regarded as having had a disability....� Regarding complainant's
reprisal claim, the agency decision noted that the extent to which
complainant's supervisor was aware of complainant's prior complainant's
was unclear. However, even if a prima facie case had been established,
the decision stated that the agency articulated a legitimate reason
for its actions. The agency explained that complainant was absent
from the work area more often or longer than other employees and that
her responsibilities as the only EEG Technician required that she
be available. The decision also noted that there was no evidence
of pretext.
On appeal, complainant argues that she requested a hearing and did not
want an agency decision. In addition, complainant describes additional
incidents of alleged harassment.
ANALYSIS AND FINDINGS
As an initial matter, we note that complainant was notified of her
right to request a hearing. The record reflects that on February
4, 1998, the notice was served on complainant by a process server.
The notice informed complainant that if she wanted a hearing she had to
advise the agency within thirty calendar day of receipt of the notice.
Complainant failed to respond within the time limit.<2>
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 complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, complainant contends that she suffered discrimination based on her
disability<3> and in reprisal for her prior EEO activity. The agency
determined that the record contained no evidence that complainant had
or was regarded as having a disability. Moreover, the agency found that
the record was unclear as to whether complainant's supervisor was aware
of her prior EEO activity.
Without commenting on the propriety of the agency's finding that
complainant was not disabled, and assuming, arguendo, that she established
a prima facie case under all of her alleged bases, we find that the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
According to the affidavits gathered during the investigation, complainant
did not have work taken away from her. Co-worker A, who was also an EEG
Technician at the time, stated that there was not enough work for both
complainant and herself, and she therefore spoke to the administrator.
Co-worker A had an interest in sleep disorders and she was therefore
offered work in the sleep clinic. Regarding complainant's alleged
higher degree of accountability, namely the requirement that she page
her supervisor while away from the work area, the RMO explained that she
was located on the 10th floor while complainant worked on the 6th floor.
The record revealed that complainant was the only employee involved
with patient care, and therefore needed to be located when a patient
was coming. Moreover, the RMO noted that she had received several
complaints regarding instances where complainant was away from the work
area and could not be located. With respect to complainant's claim that
she was shunned, her co-workers denied the allegation. One co-worker
explained that she did find complainant to be confrontational and
therefore limited her interactions with her to avoid such situations.
We find that the record supports the agency's reasons for its actions.
The burden then returns to complainant to demonstrate that the agency's
articulated reasons are unworthy of belief. In the instant case, however,
complainant has not provided evidence of pretext. Accordingly, we find
complainant has not established that she was discriminated against based
on disability and reprisal.
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 decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 20, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 We note that in February 1997, complainant made a generalized request
for hearings on her EEO complaints. We do not find this earlier statement
to be a satisfactory response to the agency's February 1998 notification
of the right to a hearing, following the investigation of the instant
complaint.
3We note that complainant has not alleged a particular disability nor
is a specific impairment revealed by the record.