of problems that she had experienced with the plaintiff. Dr.
Song said Mrs. Day refused to help out with the reception
clerk's duties or to fill in for the secretary when she was
absent. According to Dawson, Mrs. Day denied that she was ever
asked to perform these tasks.
Further, Dr. Song said Mrs. Day "walked out of a meeting"
with Dr. Song and Ms. May when the three were discussing the
confrontation between Mrs. Day and Ms. May in July. Pltf's Exh.
7. According to Dawson's report, Mrs. Day admitted she
"excuse[d] herself from this meeting," because she felt she was
now "the one being accused," and that Ms. May had been
"informed" by Dr. Song "how to respond to the situation."
Id. Dawson's report supports Mrs. Day's testimony that Dr. Song
referred to the confrontation with Ms. May as a reason for Mrs.
Day's reassignment.*fn5 Id.
Sixty percent of plaintiff's work in Radiation Therapy was
medical transcription, with the remaining time spent working
directly with patients and their kin. Tr. 12, 33-34. Estimates
of the amount of time that Mrs. Day spent doing medical
transcription ranged from less than one hour a day to two and
half to three hours a day. Tr. 129, Pltf's Exh. 11, Deft's Exh.
G. Mrs. Day testified that she spent "most" of her time on
transcription, approximately sixty percent. Tr. 33-34, 44.
Calculated on an eight-hour work day, that would be four and a
half hours a day.
The evidence showed that the number of new cases in Radiation
Therapy had been declining gradually since 1980. Deft's Exh. W.
There was no documentation presented regarding the number of
cases carried over from previous years, nor any information
regarding other measures of the department's workload.
Meanwhile, Mrs. Day reported to the Nuclear Medicine Service
for her new assignment. She worked there satisfactorily until
her retirement in 1986, doing general secretarial work,
assembling charts, and following purchase orders. Pltf's Exh.
15 at 10. She did no transcribing. Tr. 35. Mrs. Day gave the
following reasons for her resignation from the hospital in
1986: "I was spent. I was worn out. I was hurt . . . Because of
the way I was done. . . . the way I was removed from my job as
being irresponsible, as being not needed, not wanted because of
who I was. That is all." Tr. 35-36.
Mrs. Day filed a formal discrimination complaint with the
hospital's EEO office. Deft's Exh. H. On May 29, 1986
Investigator Clarence Bell concluded that Mrs. Day had been
treated "unfairly and inhumanely" but there was no clear
evidence that the treatment was based on her age or on racial
animus. Deft's Exh. F. In a Notice of Proposed Disposition of
Discrimination Complaint, dated September 2, 1986, the Veterans
Administration apologized for the lack of courtesy and
"unceremonious" treatment Mrs. Day was given, acknowledging her
"exemplary" performance over many years. Deft's Exh. E.
Nevertheless, they concluded that there was no unlawful
discrimination. She pursued her complaint through the Equal
Employment Opportunity Commission ("EEOC"), as required by
regulation. 29 C.F.R. § 1613.214. Her complaint was rejected on
the ground that the allegation failed to state a claim under 29
C.F.R. § 1613.212. She commenced this civil action in July
Discriminatory or disparate treatment in violation of Title
VII occurs where "[t]he employer simply treats some people less
favorably than others because of their race, color, religion,
sex or national origin. Proof of discriminatory motive is
critical, although it can in some situations be inferred from
the mere fact of differences in treatment." See Int'l Bhd. of
Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97
S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977). In Title VII
as well as ADEA
actions,*fn6 the plaintiff bears the burden of initially
proving a prima facie case. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089,
1093-94, 67 L.Ed.2d 207 (1981). A prima facie case of
discriminatory treatment may be made out by the plaintiff's
(i) that he belongs to a racial minority; (ii)
that he applied and was qualified for a job for
which the employer was seeking applicants; (iii)
that, despite his qualifications, he was rejected;
and (iv) that, after his rejection, the position
remained open and the employer continued to seek
applicants from persons of complainant's
McDonnell Douglas Corp. v. Green,