01972786
04-20-2001
Anita Christian-Harper, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Anita Christian-Harper v. Department of Veteran's Affairs
01972786
4/20/01
.
Anita Christian-Harper,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01972786
Agency No. 96-0067
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleged that she was discriminated against on the
basis of race (African-American) when she was harassed, denied certain
job assignments, and otherwise treated less favorably on the job when
she was not permitted to perform sleep studies, and was trained by a
less qualified therapist from 1994 to September 1995.
The record reveals that during the relevant time, complainant was employed
as a Respiratory Therapist (RT), GS-7 at the agency's Decatur, Georgia
facility. Believing she was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
September 22, 1995. At the conclusion of the investigation, the agency
issued a final decision.
Complainant is one of approximately 20 Respiratory Therapists (RT)
supervised by the Chief Therapist (Caucasian), who primarily worked
the day shift. At the time relevant to the complaint, complainant
worked the night shift (12:00 midnight until 8:00 a.m.) at the Decatur,
Georgia Veteran's Affairs (VA) Medical Center. In addition to the regular
duties of a RT, a night shift RT was often required to conduct a sleep
study on patients suffering from sleep apnea. For a sleep study, the
RT was required to fit the patient with the appropriate mask, and place
a probe on the patient's finger that would measure oxygen saturation
of hemoglobin in the patient's blood. If it was determined that the
patient had low levels of oxygen at night, another test is conducted,
this time using a Continuous Positive Airway Pressure machine.
The gravamen of complainant's complaint centers around her allegation that
the Chief Therapist favored the comparative, the only RT on the night
shift who was not African-American, by only assigning the comparative
to conduct sleep studies, and informing only the comparative about
a sleep study training session. As a result of working on the sleep
studies, the comparative was permitted to arrive at work early to set
up the sleep study and therefore earn compensatory time. According to
complainant, this protected the comparative from working mandatory
overtime. Complainant alleged that the comparative was permitted to
arrive at work early to set up the sleep study, despite the presence
of other RTs from the evening shift already on duty who were capable of
setting up the sleep study. In addition, complainant alleged that other
RT's needed to do the comparative's work while he did the sleep study.
Complainant states that the Chief Therapist favored the comparative over
other RT's, despite his lack of certification. Although complainant
stated that she sometimes went along with the comparative while he
conducted the sleep study, she was also required to complete her other
assignments, while the comparative was only assigned the sleep study.
The record reveals that at least five RTs filed EEO complaints alleging
discrimination by the Chief Therapist.<1> Complainant alleged that the
Chief Therapist favors the Caucasian RTs over the African American RTs.
She believes that the only reason the Chief Therapist hired her was so
she �would keep the rest of the Blacks in line.� Complainant's Affidavit
at p. 26.<2> One RT (African-American) averred that the Chief Therapist
would �utilize a White person any day over a Black person, no matter how
much education you've got.� This RT averred that she believes that the
Chief Therapist selects African-Americans to work in her unit so that
she can �control them.� One individual averred that she heard the Chief
Therapist reference Blacks and the welfare system.
In its FAD, the agency concluded that complainant established a prima
facie case of race discrimination in that she showed that she was
treated differently than the comparative employee (White/Hispanic) who was
regularly assigned sleep studies. The agency also found that it satisfied
its burden of �articulating legitimate, nondiscriminatory reasons for
their decisions regarding the treatment of Black employees.� FAD at
p. 5. Specifically, the agency found that the comparative demonstrated a
particular interest and proficiency in conducting sleep studies, had taken
specialized training in the area, and also volunteered to train other RTs.
Although the agency conceded that the comparative conducted the majority
of the sleep studies, it did note that other RTs also did sleep studies.
Although the agency found that it provided other RTs with sleep study
experience, few expressed a specific interest in the function, or were
willing to work with the comparative. Finally, the agency found that
mandatory overtime was a rare occurrence.
The agency conceded that the record showed the Chief Therapist needed
to improve her supervisory skills. However, they found no evidence that
race was a constituting factor to her treatment of employees.
On appeal, complainant contends that she was fully qualified to perform
a sleep study, but was not assigned as much as the comparative, who had
less formal training than she does. She provided documents that show that
no sleep studies were performed while the comparative was on vacation.
Complainant also provides a performance appraisal wherein she was rated
�fully successful� in the area of oxygen delivery. The agency requests
that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), we agree with the agency's finding that complainant
established a prima facie case of race discrimination. We also find,
contrary to the agency's conclusion, that the agency's reasons are a
pretext for discriminatory animus toward complainant's race. In reaching
this conclusion, we find that the Chief Therapist held a general lack of
faith when it came to the night shift employees, with the exception of
the comparative. However, after a review of complainant's performance
appraisal wherein she was rated �fully successful,� we find no evidence
to support the agency's position that complainant made mistakes while
conducting sleep studies. Rather, we find that instead of encouraging
additional proficiency in the sleep study area, if it was needed, the
Chief Therapist assigned sleep studies to the comparative only, or in
some cases, required the comparative to accompany other RTs for the study.
Furthermore, although the Chief Therapist averred that the comparative
was the only RT who expressed an interest in performing sleep studies,
we find her to be not credible. In that regard, we note that had
complainant been given the opportunity for training and work on sleep
studies as the Chief Therapist contends, it is unlikely that complainant
would have filed the instant complaint.
Although the agency states that the comparative was used for the sleep
studies because he went to a week long training session, there is no
evidence that this training was a requirement of the task. Further, the
agency failed to address complainant's contention that the comparative
was the only one who was offered the training opportunity.
The agency found that the absence of direct evidence of discrimination
supports a finding of no discrimination. However, we note the Supreme
Court has found that evidence sufficient to discredit an employer's
proffered nondiscriminatory reasons for its actions, taken together
with the complainant's prima facie case, may be sufficient to support a
finding of discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
120 S. Ct. 2097(2000). Nonetheless, testimony in the record contains
examples of incidents where the Chief Therapist belittled African-American
RT's in front of other co-workers, and did not afford them the treatment
she afforded the comparative.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the agency's
final decision. We direct the agency to take remedial actions in
accordance with this decision and ORDER below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days from the date this decision becomes final, the
agency shall take corrective, curative and preventative action to ensure
that race discrimination does not recur, including but not limited to
providing training to the Chief Therapist at the VAMC Pulmonary and
Critical Care Medicine Section, Decatur Georgia, in the law against
employment discrimination.
The agency shall immediately provide its employees with equal opportunity
in the assignment of duties, including sleep studies. The agency shall
ensure that complainant is afforded the opportunity to perform sleep
studies.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Pulmonary and Critical Care Medicine
Section, Veterans Affairs Medical Center, Decatur Georgia facility copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
4/20/01
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Veteran's Affairs Medical Center, Decatur, Georgia,
(hereinafter referred to as �facility�) supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The facility has been found to have discriminated on the basis of race
when a Respiratory Therapist was denied the opportunity to conduct sleep
studies unsupervised. The facility was ordered to provide training for
the Chief Therapist in the laws prohibiting employment discrimination.
The agency was also ordered to provide equal opportunity when assigning
sleep studies in the future. The agency was also ordered to pay
complainant's reasonable attorney's fees, and post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 16141In Moore v. VA, EEOC Appeal No. 01972657 (November 19,
1998), the Office of Federal Operations found the agency discriminated
against the complainant based on his race when it denied him the
opportunity to conduct sleep studies.
2Complainant worked as the Lead Therapist when she was initially hired,
but later stopped working that role due to interpersonal problems with
co-workers. As a Lead Therapist, complainant was charged with assigning
duties on the night shift. However, the Chief Therapist continued to
assign the sleep study duty.