0120061702
01-03-2008
Melinda A. Stanton,1 Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Melinda A. Stanton,1
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200617022
Agency No. 200306742004102877
Hearing No. 310-2005-00266X
DECISION
Complainant filed an appeal from an agency's final action dated December
6, 2005, finding no discrimination with regard to her complaint. In her
complaint, dated July 14, 2004, complainant, a GS-5 Licensed Vocational
Nurse in Nursing Service, Ward 2K, at the agency's Temple VA Medical
Center, alleged discrimination based on race (African American) and
disability (back strain) when she became aware that a White coworker
was working overtime. The record indicates that at the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On November 9, 2005, the AJ, after a hearing,
issued a decision finding no discrimination, which was implemented by
the agency in its final action.
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, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that
complainant had established a prima facie case of discrimination,
the agency articulated legitimate, nondiscriminatory reasons for
the alleged incident. Complainant claimed that on May 17, 2004, she
learned that the comparative employee worked overtime on May 11, 2004.
The AJ determined that complainant was not similarly situated to the
comparative employee because complainant's medical restrictions did not
state that she could work more than 8 hours per day. The AJ noted that
during the relevant time period at issue, complainant's restrictions were:
8 hour shifts, 10 hours maximum pushing/pulling/lifting up to 30 pounds,
and limited to category 2 patients. Whereas, the comparative employee
had restrictions working with category 1 or 2 patients and no lifting
over 20 pounds and could work 8-10-12 hours per day.
The AJ stated that according to the agency's Human Resources Officer,
employees with restrictions were limited to working 8 hours per day
unless specifically notated by their physicians. Complainant testified
that in July 2004, at a meeting with the Human Resources Officer, he told
her that with a doctor's statement, she could work over 8 hours per day.
Complainant also testified that in 2005, she got a doctor's note allowing
her to work up to 16 hours per day.
Complainant's supervisor stated that generally limited duty employees
were not allowed to work overtime due to the agency's policy that their
restrictions did not allow them to work more than 8 hours per day.
She further stated that the comparative employee's restrictions
did specifically state that she could work up to 12 hours per day.
The supervisor indicated that there was a lot of overtime work available,
and that she needed employees to work overtime, but that complainant did
not work overtime because she was on limited duty and her restrictions
did not state that she could work more than 8 hours. She also indicated
that once complainant's doctor allowed her to work overtime, she did so.
The AJ stated that complainant failed to show by a preponderance of the
evidence that the agency's proffered reasons were pretextual. The AJ
noted that the comparative employee had more extensive limitations
than complainant in terms of lifting restrictions and was allowed to
work overtime. The AJ also added that many persons of the same race as
complainant were allowed to work overtime. Upon review, the Commission
finds that the AJ's factual findings of no discriminatory intent are
supported by substantial evidence in the record. It is noted that the
Commission does not address in this decision whether complainant is a
qualified individual with a disability. It is also noted that complainant
has not claimed that she was denied a reasonable accommodation nor has she
claimed that she was required to work beyond her medical restrictions.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
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
1/3/2008
__________________
Date
1 Prior to the instant appeal, complainant's name during the processing
of the complaint was Melinda Haynes.
2 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120061702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036