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.
??
??
??
??
2
0120064746
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064746
6
0120064746