0120140933
05-27-2016
Wilda M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilda M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140933
Agency No. 2003-0674-2013100009
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's *date* final decision 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Social Science Program Specialist at the Agency's Veterans Affairs Medical Center in Temple, Texas.
On November 14, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of national origin (African American), sex (female), disability, and in reprisal for prior EEO activity when:
1. on September 5, 2012, a psychiatrist denied her request for a transfer/reassignment to the Women's Trauma Recovery Center; and
2. on March 7, 2013, Complainant's supervisor informed her that she would be assigned additional duties to perform as part of the Women's Trauma Recovery Center.2
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On April 1, 2015, the Agency issued the instant final decision. The Agency dismissed claim 2 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a). The Agency then proceeded to address claims 1 - 2 on the merits, finding no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of national origin, sex, disability, and retaliation.3 The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
The instant appeal followed. Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
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, she must first establish a prima facie 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. See 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. See 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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions.
With respect to claim 1, the Psychiatrist, also Complainant's second line supervisor, stated at that time he was not aware of Complainant's request to be reassigned to the Women's Trauma Recovery Center. Specifically, the Psychiatrist stated "all I know, Complainant never contacted me, never called me, never e-mailed me. All I know is she has supervisor for that time; I was the boss of that supervisor. He came to me and asked me what I thought about her request for transfer." The Psychiatrist stated that during the relevant period Complainant was employed to work in Telehealth to do clinical contact with patients and was not employed as a clinician.
The Psychiatrist further stated "now, the position [Complainant] was asking to be moved to is the Women's Trauma Recovery Center. At the time we had two Ph.Ds in that program...and there are usually a maximum of eight patients, maximum. Usually there are about four to five patients there. So here was a problem where we have two PhDs working with about four to five patients...that's a very, very high provider or employee to patient ratio, two PhDs to four patients. And the question I put to the supervisor was, well, do you think you need [Complainant] over there? Do you think you have enough people in that program? He said yes. And I said, do you think you need her where she is right now? He said yes. I said, then, I don't understand why you're asking me about my opinion because it seems like to me that the employee was - - is assigned to a particular position where you need her, and she's asking to be moved to another position where you may need her."
The Psychiatrist stated that a few months later his supervisor contacted him and asked for his opinion about this matter. The Psychiatrist stated that he told his supervisor "I have done my own research, I don't think we need [Complainant] in this program where she's asking to go, because that program is actually almost overstaffed at the moment. So that's all I know about this request."
Regarding claim 2, the Chief of the Domiciliary Rehabilitation Treatment Program, also Complainant's supervisor, stated that he does not recall telling Complainant that he would assign her additional duties. Specifically, the Chief stated "I don't recall. I mean, I don't have any additional information to prompt anything. The only recollection I had, and I don't know today, and I tried to find information on this date to see if anything was written on, written down, the only time that I remember speaking to [Complainant] about duties in the Women's Trauma Recovery Center was when she asked me if she could do a project with them and I said yes. But I never approached her about doing additional duties that I'm aware of. That's out of the scope of what she's already doing up there."
With respect to Complainant's allegation that the Chief told her that he knew all about her prior protected activity during their conversation regarding potential additional duties, the Chief denied it. The Chief stated that Complainant was the one that told him about her prior protected activity. Specifically, the Chief stated "the only person who's talked to me about it is [Complainant]. I have not approached her. I can tell you with confidence that I did not approach her about her EEO Complaint; if so it did come up again, it would be if she brought it up."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 27, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record reflects that claim 2 was later amended to the instant formal complaint.
3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
4 On appeal, Complainant does not challenge the November 30, 2012 partial dismissal issued by the agency regarding her harassment claim. Therefore, we have not addressed this issue in our decision.
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