01975991
06-29-1999
Susan M. Stewart, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs Agency.
Susan M. Stewart, )
Appellant, )
) Appeal No. 01975991
v. ) Agency No. 95-1435
) Hearing No. 340-95-3883X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (Caucasian), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges she was discriminated against when: (1)
she was placed on a Performance Improvement Plan on or about November 9,
1994; and (2) her clinical judgement was questioned by her supervisor
on or about January 5, 1995, and January 12, 1995, resulting in her
receiving verbal or written counseling. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time appellant was employed
as a Registered Psychiatry Nurse at the agency's Jerry L. Pettis Memorial
Veterans Medical Center, Loma Linda, California (facility). The record
reflects that based on information from physicians, nurses and patients
at the facility, appellant's supervisor<1> (AS)(Filipino) became aware of
various complaints regarding appellant's job performance such as failure
to follow doctor's orders and poor decision-making. AS discussed her
concerns about appellant's competence with the Assistant Chief Nurse
for Psychiatry Services (Caucasian), and requested that appellant be
placed on a Performance Improvement Plan (PIP) on or about November 9,
1994.<2> Appellant was then shifted to the day shift so AS could observe
her performance, and was required under the terms of the PIP to meet with
AS at least once a week to discuss training needs/goals and her progress.
Subsequently, AS was notified that appellant failed to follow proper
agency protocol when she unilaterally sent a nurse �floater� while she was
serving as charge nurse. AS documented appellant's protocol violation
in her first written progress review dated January 5, 1995, along with
positive progress she had made regarding interpersonal relationships.
In addition, appellant stated that she received written counseling
regarding a charge that she failed to follow a physician's order to
restrain a patient on or about January 12, 1995, although there is no
evidence that this counseling was placed in writing by management.
Believing she was the victim of discrimination, appellant filed a formal
EEO complaint with the agency on April 14, 1995, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, appellant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a Recommended Decision (RD) finding
no discrimination.
The AJ concluded that appellant failed to establish a prima facie
case of discrimination on the above-stated issues because she failed to
demonstrate that similarly situated employees not in her protected classes
were treated differently under similar circumstances. In addition,
the AJ concluded that appellant failed to establish a prima facie case
of racial harassment, as there was insufficient evidence to demonstrate
that AS created a hostile working environment based on appellant's race
by addressing her performance-related problems through the PIP and
written or verbal counseling. The agency's FAD adopted the AJ's RD.
Appellant makes no new contentions on appeal, and the agency requests
that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We find that appellant failed
to present credible evidence that any of the agency's actions in
addressing her performance-related problems through the PIP and written
or verbal counseling were motivated by discriminatory animus toward
appellant's race. The evidence supports the AJ's finding that the
agency's disciplinary actions were taken after consideration of numerous
reports regarding appellant's job performance, and that Caucasian managers
concurred in the actions taken against her. We thus discern no basis
to disturb the AJ's findings of no discrimination or harassment which
were based on a detailed assessment of the record. Therefore, after a
careful review of the record and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The record
reflects that AS served as appellant's first
level supervisor for four years prior to placing
her on the PIP.
2 The PIP was not placed into appellant's Official Personnel Folder and
thus management officials considered this an �unofficial� PIP.