01A32428
04-14-2004
Cindy Elliott, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Cindy Elliott v. Department of Veterans Affairs
01A32428
April 14, 2004
.
Cindy Elliott,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A32428
Agency No. 200I-0619-2001300233
Hearing No. 130-A2-8229-X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency subjected her to a hostile work
environment due to her disability (pregnancy)<1> when: (1) she was
the subject of an investigation dealing with patient abuse; (2) she
was notified that her request for leave without pay (LWOP) in lieu of
annual and/or sick leave was denied; (3) her proficiency report was not
completed in a timely manner. Complainant also alleged that she was
discriminated against when her scheduled tour of duty and number of hours
worked were not adjusted to reflect the medical restrictions imposed by
her physician. During the hearing phase of her complaint, complainant
amended her complaint to (a) include the basis of sex (pregnant female)
discrimination under Title VII, and (b) to amend Claim 3 to include
her non-promotion to the Nurse III level because she was not allowed to
provide input into her proficiency report.
After a careful review of the record, the Commission finds that the AJ
correctly determined that complainant was not subjected to a hostile
work environment or discrimination. The Commission notes that the AJ's
decision incorporated, but did not specifically address, complainant's
amended basis and claim.<2> Based on our review of the record, however,
we find that there is sufficient evidence to enable the Commission to make
a determination regarding complainant's amendments. Assuming, arguendo,
that complainant established a prima facie claim for discrimination based
on sex, she failed to show that the legitimate, nondiscriminatory reasons
articulated by the agency for its actions were pretexts for unlawful
discrimination based on sex. Specifically, she failed to show that the
agency did not have a legal obligation to investigate the allegation of
patient abuse based on a complaint raised by a patient's relative; that
she had exhausted her sick and annual leave prior to requesting LWOP;
or that the submissions of other proficiency reports in her unit were
not also delayed. Further, the record reveals that despite the delay
in issuing the proficiency report, complainant still received her step
increase in a timely manner. In relation to her non-promotion to the
Nurse III level, the record reveals that complainant's input was requested
prior to her departure for maternity leave, and also while she was on
leave, but that complainant failed to submit the information. Report of
Investigation, Exhibit B2, p. 15, Exhibit B4, pp. 30-31. As such, due
to complainant's own delay, her input was not available for consideration
or inclusion in complainant's proficiency report or any promotion review
occurring during that time period.
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 issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
April 14, 2004
__________________
Date
1The Pregnancy Discrimination Act (PDA), 42
U.S.C. 2000e(k), which was enacted in 1978, states that discrimination
on the basis of "pregnancy, childbirth or related medical conditions"
constitutes sex discrimination under Title VII. Pregnancy is not a
"disability" for purposes of the ADA, and allegations of employment
discrimination based on pregnancy are covered by Title VII. Nonetheless,
complications resulting from pregnancy may be impairments which can rise
to the level of a disability if a major life activity is substantially
limited. The Commission recognizes that there are circumstances under
which complications from pregnancy can substantially limit a major life
activity, and therefore rise to the level of a disability. See Stewart
v. USPS, EEOC Request No. 05960071 (December 18, 1996); 29 C.F.R. 1630
app. 1630.2(h); Definition of the Term "Disability," EEOC Compliance
Manual Section 902, 902-9 (March 14, 1995). However, there is no
evidence in the record to indicate complainant's condition included
such circumstances.
2It is well established that EEO charges are to be liberally construed to
effectuate the purposes of the discrimination statutes and the crucial
role of the private litigant in the statutory scheme. Sanchez v. Standard
Brand, Inc., 431 F.2d 455 (5th Cir. 1970). President v. Vance, 627
F.2d 353 (D.C. Cir. 1980) (applying the Sanchez principles to federal
employees). Furthermore, the Commission has the authority to "reframe
charges and use available materials and information to articulate lay
complainant's charges." Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355,
357 (6th Cir. 1969). In this case, the underlying facts surrounding the
complaint remain the same and complainant's amendment would simply apply
an additional basis of alleged discrimination to those facts. Rajpal
v. United State Postal Service, RTR No. 05920037 (May 19, 1992).