0120141673
07-13-2016
Brendon L.,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
Brendon L.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141673
Hearing No. 410-2013-00203X
Agency No. 2001-0508-2012103515
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 13, 2014 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Registered Nurse the Agency's Emergency Department, Atlanta Veterans Affairs Medical Center in Decatur, Georgia.2
On July 14, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of age (over 40) when:
on June 1, 2012, he was notified that his request to be switched from full-time to part-time status was denied.
After the investigation, Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). Following a December 13, 2013 hearing, the AJ issued a decision finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the basis of age.
The AJ noted that Complainant generally worked the night shift and the nurse in the Emergency Room (ER) typically worked six 12-hour shifts and one 8-hour shift in a 2-week pay period. Complainant indicated that he preferred to work a couple of days in a row, in order to adjust his biorhythm to the hours of the night shift, followed by a couple of days off to recuperate form the demands of working night shifts. The AJ noted that during his testimony, Complainant implied that most nurses on the night shift preferred to work some variations on this type of schedule and that management had typically managed to schedule them within these limits.
The AJ noted that the Agency assigned new management to the ER shortly before Complainant's resignation. Complainant reported to the Nurse Manager for the last nine months he worked there, and the Nurse Manager reported to the Associate Nurse Executive. Complainant felt that his supervisors did not do a good job creating the nurses' schedule, including his schedule. Specifically, Complainant alleged that the supervisors forced him to work too many days in a row and did not give him enough time off in between the days that he worked back-to-back. Complainant stated that he was facing health problems that made it difficult to cope with the schedules that he was being forced to work, although his testimony implied that perhaps those schedules were too much for anyone to handle. Complainant wanted to work 2 days in a row followed by at least 2 consecutive days off.
On March 16, 2012, Complainant sent an email to the Nurse Manager along with a formal memorandum requesting a schedule of 2 nights per week, 48 hours per pay period with 2 nights back-to-back, followed by several days off. The AJ noted that Complainant failed to demonstrate that any other nurses were guaranteed such a schedule or that they worked one. When the Agency requested medical documentation in support of his request, Complainant submitted a doctor's note, which was conclusory. Thereafter, the Nurse Manager responded to Complainant's email indicating that she did not have any part-time positions available for him.
Complainant challenged the Nurse Manager's response by stating that "several people" worked part-time and that he was only asking for the same consideration extended to his unspecified co-workers. The AJ found, however, Complainant failed to prove that this assertion was true. Complainant explicitly sought what the Agency calls a ".6" schedule. A ".6" schedule meant that he would work six tenth of the hours worked by a regular employee. The Agency had posted one ".6" position several years previously. A named female nurse (Nurse 1) applied for this position and received it. At the time, Nurse 1 was the only nurse in the ER worked such a schedule. Complainant made no showing that the ER had ever split any full-time nurse positions in half for the benefit of anyone.
On July 12, 2012, Complainant met with the Associate Nursing Director for Staffing Resources and the Associate Nurse Executive concerning his schedule concerns. Prior to the July 12, 2012 meeting, the Associate Nursing Director reviewed the nurses' schedules for the previous 35 prior pay periods (approximately 18 months) and prepared a spreadsheet that compared Complainant's schedule with that of his co-workers. The Associate Nursing Director conceded that Complainant had to work 3 consecutive days without two days off before and after on 3 occasions. The Associate Nursing Director also conceded that such scheduling should be avoided. However, the Associate Nursing Director denied that the Agency had singled Complainant out, and felt that he had overstated the issue.
Complainant indicated that he did not want to contest that point and instead, wanted to discuss his request for part-time work. The Associate Nursing Director noted that one of the nurses that Complainant cited as working a favorable schedule had converted to intermittent status and was not guaranteed any hours. The Associate Nursing Director and the Nurse Manager then offered Complainant a ".9" schedule, the chance to work on the Float Team as well as a part-time job at a satellite facility in Carrolton, Georgia. Complainant claimed that the Carrolton job offer had a long commute, the ".9" position would not solve his issue, working in the Float Team would require him to work in Acute Care at times and he wanted to limit himself to the ER. Complainant reiterated his request for part-time work. The Associate Nursing Director stated that he could request an accommodation if he was disabled and she explained how he could do that.
Further, the Associate Nursing Director sent Complainant a copy of her email that summarized the July 12, 2012 meeting. Complainant did not respond by expressing interest in the intermittent job nor did he suggest any way that a ".9" job could be structured to meet his needs. Complainant submitted a copy of his doctor's letter to Agency management in which the doctor recommended part-time work for Complainant. However, Complainant's doctor did not specific what Complainant's condition was or why an accommodation was needed. The Agency requested that Complainant provide additional specific medical documentation and thereafter, Complainant tendered his resignation in September 2012.
With respect to Complainant's allegation that other co-workers were given preference treatment, the AJ noted that Nurse 1 worked a ".6" schedule, one that he would have liked. However, Nurse 1 had applied for and received a part-time job. Specifically, the AJ determined that this was not a situation where a job had been split in half for Nurse 1's benefit. Instead, it was simply a matter where the Agency management did not have one part-time position at the Agency. Nurse 1 applied for the ".6" position and received it. Complainant did not demonstrate anyone else who worked half-time like he wanted to and the Agency offered him the ".9" schedule that was worked by other comparators that he cited.
During her testimony, the Associate Director, Nursing and Patient Care Services stated that she has known Complainant for several years and considered him to be a very good and valuable Registered Nurse in the ER. The Associate Director stated that during the relevant period Complainant wanted to work ".6" which is 60 percent time (two 12-hour shifts per week). The Associate Director at that time there was no vacant part-time position available in the ER. The AJ noted that the Associate Director testified that she was eager to retain Complainant's services, however, she also "explained, quite credibly" that the part-time job was not reasonable from the Agency's standpoint and that she thought her subordinates had acted reasonably in their efforts to meet Complainant's needs.
The Agency, in its final order, adopted the AJ's finding of no discrimination.
Complainant, on appeal, argues that the AJ erred finding no discrimination. For instance, Complainant states "none of the perpetrators of this blatant discrimination were allowed to testify - only those indirectly knowledgeable of the offenses."
The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision as addressed in detail above, is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven to be pretextual, is abundantly supported by the record, as referenced above. Beyond his bare assertions, Complainant does not point to evidence of record sufficient to prove that the reasons proffered were a pretext designed to mask the true discriminatory motivation.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
July 13, 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 Complainant resigned from Agency employment effective September 29, 2012.
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