01a51357
05-31-2005
William H. Shelton, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
William H. Shelton v. Department of Veterans Affairs
01A51357
May 31, 2005
.
William H. Shelton,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51357
Agency No. 2004-0540-2002102806
Hearing No. 170-A3-8298X
DECISION
Complainant filed a timely appeal from an agency's October 14, 2004
notice of final action concerning his 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
In his complaint, dated May 23, 2002, complainant, a Registered Nurse,
alleged discrimination based on race (Cherokee Indian), religion
(Cherokee), disability (muscular disease), and in reprisal for prior
EEO activity when he was subjected to a hostile work environment
from March 2002 through April 2002, in connection with (1) a verbal
confrontation between him and a coworker on March 19, 2002, (2) the
delay of his within-grade pay increase due on March 26, 2002, (3) his
reassignment on April 4, 2002, and (4) the scheduling of a Fitness for
Duty examination on April 5, 2002. The record indicates that at the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). 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.
Upon review, the Commission finds that assuming arguendo that complainant
had established a prima facie case of discrimination, the agency has
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the AJ noted that with regard to claim (1), while in a
hallway near the nurse's station, the identified coworker made a verbal
comment during his conversation with another agency employee which
complainant overheard. When complainant questioned the coworker about
whether the comment was directed to complainant, he loudly replied to
complainant, informing complainant that he would request agency management
to impose a �gag order� on complainant. The AJ noted that complainant's
supervisors, after being informed of the alleged incident, directed
complainant and the coworker to prepare a written report of contact
concerning the incident. The coworker testified that his remark was
the culmination of his frustration with complainant's effort to obtain
information from him about another agency employee. The AJ noted that
complainant did not dispute having questioned the coworker about that
agency employee prior to the alleged incident and finding the coworker
unresponsive and indeed, by complainant's description, antagonistic to
being questioned. The AJ determined that the coworker's conduct was
based on his animus toward complainant, because complainant raised the
question about the coworker's veracity, not because of discriminatory
motive. The AJ found that the alleged incident, a single incident of an
offensive utterance, did not rise to the level of harassment. The AJ also
found that the agency took prompt remedial action to address the matter.
Specifically, the support services manager testified that after being
informed of the alleged incident, she met with the coworker and advised
him that it was inappropriate to have verbal confrontation with another
employee, and cautioned him to be professional in his conduct at work.
The manager also testified, undisputed by complainant, that there was
no recurrence of verbal conduct toward complainant by the coworker after
the alleged incident.
With regard to claim (2), the AJ noted that complainant was informed by
his supervisor that his within-grade increase would be delayed because she
had insufficient time to evaluate him and that his previous supervisor had
not completed his performance evaluation. After complainant's previous
supervisor prepared a proficiency report on complainant's performance,
which was satisfactory, the supervisor approved complainant's within-grade
increase in May 2002, which was retroactive to complainant's second
anniversary date of service, which was March 26, 2002.
With regard to claims (3) and (4), the AJ, initially, noted that
complainant held the position of RN since March 1999 to April 2002.
In that position, complainant was assigned to the PTSD residential
program unit, which included responsibilities of inducing admission,
discharging patients, monitoring and administration of medication, and
attending treatment team meetings. Complainant's supervisor testified
that complainant was reassigned/detailed, described in claim (3), to the
primary/outpatient care unit from the PTSD unit in order to �diffuse�
the situation in the PTSD unit. The AJ noted that complainant, himself,
testified that he felt the PTSD staff were hostile toward him because of
allegations previously made against him by a PTSD staff member in October
and December 2001. Complainant's supervisors also stated that they were
also concerned about complainant's ability to function as a nurse.
The AJ noted that after complainant's supervisor informed employees
of their rotation into the acute psychiatric unit to provide vacation
coverage, complainant verbally informed the supervisor that he had
various medical conditions, including irritable bowel syndrome, arterial
fibrillation and a muscle disorder. He also submitted a letter dated
February 27, 2002, from his primary care doctor simply stating that he
was precluded from lifting over 25 pounds with no diagnosis or other
assessment of his condition. Complainant's supervisor testified that she
requested a Fitness for Duty examination be scheduled for complainant,
described in claim (4), which was subsequently canceled. The supervisor
also testified that complainant, subsequently, submitted additional
medical documentation upon her request and a determination was made that
complainant was able to perform the functions of his RN position with a
lifting restriction. There is no indication that complainant is claiming
that he was denied a reasonable accommodation.<1> The AJ stated that
complainant failed to show by a preponderance of the evidence that the
agency's proffered reasons were pretextual.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
hereby AFFIRMED because 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
May 31, 2005
__________________
Date
1The Commission does not address in this decision whether complainant
is a qualified individual with a disability.