01985160
03-27-2001
Sosamma Abraham, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Sosamma Abraham v. Department of Veterans Affairs
01985160
March 27, 2001
.
Sosamma Abraham,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01985160
Agency No. 97-0290
Hearing No. 310-97-5231X
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint
of unlawful employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges she was discriminated against on
the bases of race (Asian-American), national origin (Indian), age (47)
and disability (neck injury and carpal tunnel syndrome) when she: 1)
was assigned certain duties on July 29, 1996; 2) was harassed on August
6, 1996; 3) was assigned certain duty hours on September 5, 1996; 4)
was reassigned on July 29, 1996; 5) was subjected to certain working
conditions on August 6, 1996; and 6) was charged Absent Without Leave
(AWOL) on September 13, 1996.
The record reveals that during the relevant time, complainant was employed
as a Registered Nurse at the agency's VA Medical Center in Dallas, Texas.
Believing she was the victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal EEO complaint on October
17, 1996, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a recommended decision (RD) finding no discrimination.
In her RD, the AJ concluded that the complainant failed to establish
a prima facie case of discrimination in any claim, on any basis.
With respect to all claims of disparate treatment, the AJ reasoned that
complainant failed to establish that a similarly situated comparator was
treated more favorably. Concerning complainant's harassment and hostile
environment claims, the AJ concluded that complainant failed to present
any evidence of harassment or, severe or pervasive conditions sufficient
to support a hostile environment claim.
The AJ further addressed complainant's claim that the agency failed
to provide a reasonable accommodation for her disability in that
her assignments could have forced her to work outside of her physical
restrictions.<2> Nevertheless, the AJ concluded that the complainant was
never in fact forced to work outside her physical restrictions and that
there were always other nurses and support staff available to address
any situation that might have arisen. Accordingly, the AJ concluded
that complainant was not aggrieved as to this issue.
Furthermore, the AJ concluded that the complainant failed to show
pretext in the agency's legitimate, nondiscriminatory reasons for its
actions. Specifically, the agency explained that in its assignments
for complainant, it contemplated that complainant would handle more
administrative responsibilities and only perform duties within her
physical capabilities. Complainant was further expected to delegate
physical duties to subordinate employees.
Finally, with respect to the AWOL claim, the AJ concluded that the
complainant failed to rebut the agency's explanation that she was
initially charged as AWOL when her supervisor had not been informed
why complainant had not reported to work on the date in question.
The supervisor subsequently removed the AWOL report when she was informed
that complainant had called in that day.
The agency's final decision implemented the AJ's decision. Complainant
submitted no contentions on appeal, and the agency offered no statement
in opposition to the appeal.
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's failure to submit contentions on appeal,
the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 27, 2001
__________________
Date
1The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants for
employment.
2In this regard, the AJ concluded that there was sufficient evidence
to show that complainant met the regulatory definition of a qualified
individual with a disability.