0120151412
07-19-2017
Isabelle G.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Isabelle G.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151412
Hearing No. 461201300027X
Agency No. 200305022012102557
DECISION
On March 2, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 5, 2015, final order concerning her equal employment opportunity (EEO) complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the Equal Employment Opportunity Commission Administrative Judge (AJ) determination, after a hearing, that Complainant did not establish that she was discriminated against based on her race, sex and/or age is supported by substantial evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse at the Agency's Alexandria Veterans Administration Medical Center facility in Pineville, Louisiana.
On May 30, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), and age (60) when:
1. on January 2, 2009, she was not selected for the position of Community Health Nurse, Mental Health Intensive Care Manager;
2. in September 2009, she was not selected for the position of Registered Nurse, OEF-OIF Clinic;
3. in 2010, she was not selected for the position of Behavioral Health Associate Director;
4. in March 2010, she was denied training to attend the Psychiatric Nursing Workshop;
5. in 2011, N-1, Nurse, called Complainant a liar and stated to her, "You're no good. You deserve what you get";
6. in 2011, N-2, Nurse, yelled at Complainant and called her a liar;
7. in February and March 2011, D-1, the Associate Director of Behavioral Health, sent Complainant threatening emails;
8. in February 2011 and April 2012, C-1, the Recreational Therapist, was verbally disrespectful to Complainant;
9. in March 2011 and on February 7, 2012, she attended workshops on her days off and was denied compensation;
10. on March 31, 2012, D-1, issued her a rating of satisfactory on her annual performance appraisal;
11. on May 1, 2012, she was not selected for the position of Nurse Manager-9A, Acute Inpatient Psychiatry, vacancy announcement number 640017;
12. in May 2012, she was not selected for the position of Nurse Manager-9B Primary-Acute Inpatient Psychiatry, vacancy announcement number 668436;2
13. on May 3, 2012, she was denied a locker in the employees' break room; and
14. on May 16, 2012, D-2, Director VAMC, issued her a letter of Reprimand.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Administrative Judge. Complainant timely requested a hearing and the AJ held a hearing on December 5, 2014, and issued a Bench Decision on January 12, 2015, finding no discrimination. The AJ upheld the Agency's dismissal of issues 1, 2, 3, 4 and 9 as untimely, but allowed them to be considered as background evidence with regard to Complainant's harassment claim. The AJ went on to find no persuasive evidence to support a finding of harassment or disparate treatment because Complainant did not demonstrate by preponderant evidence that the Agency's actions were based upon her protected class or that the Agency's legitimate, non-discriminatory reasons for its actions were a pretext to mask illegal discrimination. The Agency subsequently issued a final order adopting the AJ's findings that Complainant failed to prove that the Agency subjected her to discrimination and harassment, as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her representative, re-argues the interpretation of the facts adduced during the hearing. Complainant contends that facts should have led to a conclusion that her race, sex and/or age was the reason for her treatment and her denials for promotions. According to Complainant, the record indicates that black employees receive better treatment as a group than white employees.
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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's well-reasoned determination that Complainant has not proven discrimination or harassment by the Agency as alleged. Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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.
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___7/19/17_______________
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 This announcement number was incorrectly identified in the record as 61961.
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0120151412