Delia E. Ramos-Rosa, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 19, 2003
01A20688 (E.E.O.C. Mar. 19, 2003)

01A20688

03-19-2003

Delia E. Ramos-Rosa, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Delia E. Ramos-Rosa v. Department of Veterans Affairs

01A20688

March 19, 2003

.

Delia E. Ramos-Rosa,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A20688

Agency No. 98-2750

Hearing No. 01A20688

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint of unlawful

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. The appeal

is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission AFFIRMS the agency's final order.

The record reveals that, during the relevant period, complainant was

employed as a Staff Nurse at the agency's Medical Center in Philadelphia,

Pennsylvania. The record reflects that complainant, a native of

Puerto Rico, obtained her license as a Registered Nurse (RN) from the

Commonwealth of Puerto Rico. The license required renewal every three

years with the expiration date occurring in her birth month of July.

Complainant had renewed her license by mail until there was a delay in

obtaining her license in 1989. After that, complainant began traveling

to Puerto Rico to deliver her renewal documents and obtain her license.

The record also reflects that complainant was required to take continuing

education courses for a prescribed number of credit hours. For the

1998 renewal, thirty-six (36) credit hours were required. After taking

several courses, complainant possessed 31 credit hours. Two courses

that complainant had registered for were cancelled. By July 21, 1998,

three nurses (complainant and two Licensed Practical Nurses (LPNs))

had not submitted their licenses. Complainant was notified via email

that she had not submitted her license.

The record further reveals that N1 notified the Nurse Manager (M1:

Caucasian) that complainant had failed to submit proof of her license.

M1 spoke to complainant and, after learning that complainant did not

have her license, sought guidance from the Human Resources Department.

The record reflects that M1 was instructed to terminate complainant's

employment immediately.

On August 11, 1998, the license was faxed to the agency and a copy was

sent to complainant. The agency instructed complainant that she had to

follow the appeal process which included writing a letter stating why the

agency should re-hire her. Around the same time, complainant noticed that

the agency was advertising vacancies for nurses. Complainant submitted a

copy of her resume and license. M1 notified complainant that she could

not be re-hired until the appeals process was resolved. On November 9,

1998, complainant was reinstated.

Believing she was a victim of unlawful employment discrimination,

complainant filed a formal EEO complaint on October 7, 1998, alleging that

the agency had discriminated against her on the basis of national origin

(Hispanic) when on August 7, 1998, she was removed from her position.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination. Complainant appealed the decision to the

Commission and we REVERSED the agency's final order implementing the AJ's

decision and REMANDED the complaint to the Hearings Unit for scheduling

of a hearing. Ramos-Rosa v. Department of Veterans Affairs, EEOC Appeal

No. 01A10495 (March 28, 2001).

After a hearing, the AJ issued a decision on September 28, 2001, finding

no discrimination. The AJ concluded that complainant failed to establish

a prima facie case of national origin discrimination. Specifically,

the AJ found that complainant failed to demonstrate that similarly

situated employees not in complainant's protected class were treated

more favorably under similar circumstances when their licenses expired.

In point of fact, the AJ noted that the two comparative employees were

LPNs and not RNs like complainant.

The agency's final order implemented the AJ's decision. On appeal,

complainant contends, among other things, that she did establish a prima

facie case of national origin discrimination. In particular, complainant

asserts that other nurses whose licenses had expired were not removed.

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).

Although the initial inquiry of discrimination in a discrimination case

usually focuses on whether the complainant has established a prima facie

case, following this order of analysis is unnecessary when the agency

has articulated a legitimate, nondiscriminatory reason for its actions.

See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May

31, 1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether she has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

After a careful review of the record, we find that the AJ correctly

concluded that complainant failed to establish a prima facie case

of national origin discrimination. The Commission also notes that,

even assuming, arguendo, complainant did establish a prima facie case

of discrimination, the agency articulated legitimate nondiscriminatory

reasons for its actions. In reaching this conclusion, we note that the

record evidence indicates that complainant was removed because she failed

to timely renew her nursing license which violated agency regulations.

We also find that complainant has presented no evidence that other

employees similarly situated, and outside of her protected class, were

treated more favorably.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record and

that the AJ's decision referenced the appropriate regulations, policies,

and laws. We note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward complainant's national origin. We discern no basis to disturb

the AJ's decision. 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 AFFIRM the agency's final order.

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

March 19, 2003

__________________

Date