Yvette A. King-Kennedy, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 5, 2007
0120064746 (E.E.O.C. Feb. 5, 2007)

0120064746

02-05-2007

Yvette A. King-Kennedy, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Yvette A. King-Kennedy,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01200647461

Agency No. 200L-0629-2005103057

DECISION

Complainant timely initiated an appeal from the agency's 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

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �

1614.405(a).

On March 8, 2005, complainant was hired as a Staff Pharmacist, GS-11/7,

at the agency's VA Medical Center in New Orleans, Louisiana, subject to

a one-year probationary period.

On August 11, 2005, complainant filed the instant formal complaint.

Therein, complainant claimed that she was a victim of unlawful employment

discrimination on the bases of race (black) , sex (female), religion

(non-denominational) and age (year of birth - 1957) when:

on May 23, 2005, she was terminated from her position of Pharmacist

during her probationary period.

At the conclusion of the 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. Complainant

requested that the agency issue a final decision.

In its July 26, 2006 final decision, the agency found no discrimination.

The agency found that complainant failed to establish a prima facie case

of race, sex, religion and age discrimination because she did not identify

a similarly-situated employee individual outside her protected classes

who was treated differently under similar circumstances. The agency

found that assuming complainant established a prima facie case on the

raised bases, complainant did not show that management's articulated

reasons for its actions were a pretext for discrimination.

The Chief, Human Resources Management (Chief) was the deciding official to

terminate complainant during her probationary period. The Chief stated

that during a website search in preparation for a General Accounting

Office (GAO) audit of the Pharmacists, it was discovered that there was

a restriction placed on complainant's Pharmacist license. The Chief

stated "that made it necessary to terminate the complainant under VA

regulations." Specifically, the Chief stated that the agency regulations

required that its pharmacists have a full and unrestricted license.

In the May 23, 2005 termination letter, the Chief stated that on April 16,

2002, the Virginia Department of Health Professionals placed complainant's

license on permanent probation. The Chief stated that on May 24, 2004,

the Virginia Department of Health Professionals also placed an indefinite

probation on complainant's license.

The Director stated that he followed the VA Handbook 5005, Part II,

Appendix G15 Licensed Pharmacist Qualification Standards Veterans Health

Administration Chapter 2, Section A. Basic Requirements, c. Licensure

reads "Full, current and unrestricted license to practice pharmacy in

a State, Territory, Commonwealth of the United States (i.e., Puerto

Rico), or the District of Columbia. The pharmacist must maintain

current registration if this is a requirement for maintaining full,

current, and unrestricted licensure." Furthermore, the Director stated

that complainant's race, sex, religion and age were not factors in his

determination to terminate complainant during her probationary period.

The Assistant Chief of Pharmacy (AC) stated that she was informed by

the Chief that complainant "failed to maintain full and unrestricted

license." AC further stated that she was informed by Human Resources

that during the relevant time, GAO was conducting a Quality Assurance

(QA) Survey in Human Resources. AC stated "the QA result was failure

to maintain full and unrestricted license." Specifically, AC stated

that the Human Resources contacted Pharmacy Service and indicated that

complainant did not maintain a full and unrestricted license. AC stated

that Human Resources then drafted a termination letter; and directed

Pharmacy Service to issue the letter to complainant.

A Human Resources Specialist (Specialist) stated that she was contacted

by the Pharmacy Service concerning complainant's impaired license.

The Specialist further stated that she consulted management officials

and "advised that the agency was obligated to terminate an employee who

did not possess an unrestricted license." The Specialist stated that

management's determination to terminate complainant was in accordance

with the VA Handbook, 5005.

A claim of disparate treatment is examined under the three-party 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

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).

The Commission finds that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Complainant has not proven,

by a preponderance of the evidence, that the agency's articulated reasons

were a pretext for discrimination.

Finally, the Commission notes that on appeal, complainant raises

a new claim of non-selection for a separate agency position.

The non-selection claim was not previously raised. It is therefore

inappropriate for complainant to raise the new claim for the first time

as part of the instant appeal.

Accordingly, the agency's final decision finding of no discrimination

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 5, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

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0120064746

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120064746

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0120064746