05a01135
03-01-2001
Shirley M. McRae, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Shirley M. McRae v. Department of Veterans Affairs
05A01135
03-01-01
.
Shirley M. McRae,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A01135
Appeal No. 01A01361
Agency No. 98-3167
DECISION ON REQUEST TO RECONSIDER
On August 10, 2000, Shirley M. McRae (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider
the decision in Shirley M. McRae v. Togo D. West, Jr., Secretary,
Department of Veterans Affairs, EEOC Appeal No. 01A01361 (July 14, 2000).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices or operation of the agency. 29 C.F.R. �
1614.405(b).<1> For the reasons set forth below, the complainant's
request is denied.
The issue presented is whether complainant's request meets the criteria
for reconsideration of the previous decision.
Complainant filed a formal complaint on June 10, 1998, alleging
discrimination based on race, sex, and reprisal when she was suspended
and permanently removed from the position of Nurse Manager to a new
assignment. Following an investigation, complainant was notified of her
right to a hearing or an immediate final agency decision (FAD), but she
did not respond. The agency issued a FAD, finding no discrimination,
and, on appeal, the previous decision affirmed the FAD.
Complainant worked at the agency's Central Alabama Health Care System.
In February 1998, a patient died of strangulation by a restraint device.
Following an investigation by a special board, complainant and other staff
were disciplined in varying degrees for unprofessional conduct, improper
use of medical devices, and failure to immediately report the event.
Complainant claimed that another nurse (white) had failed to report the
death, also, but was not punished and the male doctor involved in the
event was not punished.
The agency stated that all employees held responsible in the February 1998
event were disciplined according to the degree of their responsibility.
The special board determined, inter alia, that the death could have been
avoided but for the staffing and communication problems for which the
complainant was responsible. Initially, primarily because she was held
responsible for failing to inform management of the death in a timely
fashion, complainant's termination was proposed but later reduced to a
suspension and removal from her position.<2>
Complainant has filed a request to reconsider the previous decision.
She asserted that the white nurse was not disciplined, and complainant
argued that the statement of the Director showed pretext. The agency
filed comments contending that complainant's request did not meet the
criteria for reconsideration.
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow, and it is not a form of second appeal. Lopez v. Department of
the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg
v. USPS, EEOC Request No. 05900850 (September 7, 1990).
In the McDonnell Douglas<3> scheme, once the agency articulates
legitimate, nondiscriminatory reasons for its actions, the ultimate burden
of persuasion returns to the complainant to demonstrate by preponderant
evidence that the reasons given by the agency for its actions are
pretextual or a sham or disguise for discrimination. The complainant
must show that the agency's action was more likely than not motivated
by discrimination, that is, that the action was influenced by legally
impermissible criteria, i.e., race/color and reprisal. Absent a showing
that the agency's articulated reason was used as a tool to discriminate
against her, complainant cannot prevail.
Complainant's arguments do not demonstrate pretext, in that, the
agency, through a special board, investigated the death in question and
issued disciplinary actions in accordance with each employee's level
of responsibility. The agency explained that complainant's position
carried a higher degree of responsibility, and consequently she received
greater discipline than others involved. After a review of complainant's
request and the entire file, we find that complainant has not submitted
sufficient evidence to demonstrate pretext.
CONCLUSION
After a review of the complainant's request for reconsideration,
the agency's reply thereto, the previous decision, and the entire
record, the Commission finds that the complainant's request fails
to meet any of the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the complainant's request.
The decision of the Commission in EEOC Appeal No. 01A01361 (July 14,
2000) remains the Commission's final decision. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 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.
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
____03-01-01______________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We note that the Charge Nurse was terminated from the agency.
3McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).