01981287
01-12-2001
Willie J. Ballard, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Willie J. Ballard v. Department of Veterans Affairs
01981287
January 12, 2001
.
Willie J. Ballard,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01981287
Agency Nos. 95-1840; 95-1921; 96-1408
Hearing Nos. 160-96-8413X; 160-96-8465X; 160-96-8640X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her three consolidated equal employment opportunity (EEO)
complaints 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.<1> The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. In the underlying
complaints, complainant contends:
(1) she was retaliated against for prior EEO activity when she received
a memorandum on or about October 5, 1994, regarding her ineffective
communication skills and when she received a notice on or about
November 8, 1994, placing her on restricted sick leave (agency complaint
no. 95-1840);
(2) she was discriminated against based on race (African-American), color
(black), and in retaliation for prior EEO activity when she received
a written counseling notice on or about May 1, 1995, for failing to
properly request leave; a verbal counseling on or about May 5, 1995, for
failing to document the dispersement of medication in accordance with
agency guidelines; and was instructed to wash a patient in violation
of her light duty restrictions (agency complaint no. 95-1921); and
(3) she was discriminated against based on race (African-American),
color (black), disability (recurrent trapezius and thoracic muscular
strain), and in retaliation for prior EEO activity when she was placed
on a performance improvement plan in October 1995, she was pressured
by her supervisor to take a different time for lunch; she was treated
disrespectfully by her supervisor in September 1995; she was unfairly
instructed to label furniture; and pressured to reschedule her appointment
with the EEO Counselor (agency complaint no. 94-1408).
The record reveals during the relevant time complainant was employed as
a Licensed Practical Nurse at the agency's Medical Center in Buffalo,
New York. She filed formal EEO complaints with the agency on January
13, 1995, June 9, 1995, and November 20, 1995, 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 decision finding no discrimination.
In a detailed decision reviewing the hearing testimony in detail, the
AJ concluded that complainant failed to establish a prima facie case
of disparate treatment on any alleged basis. The AJ further found that
even assuming arguendo complainant had established a prima facie case of
discrimination on any alleged basis, the evidence did not demonstrate
by a preponderance of the evidence that the agency's proffered reasons
for its challenged actions were a pretext for unlawful discrimination
or retaliation. The AJ additionally found that if the cited incidents
are viewed as a pattern of harassment, the evidence did not establish
that these incidents were the result of discriminatory or retaliatory
motive. The FAD found no discrimination, adopting the AJ's findings
and conclusions.
On appeal, complainant contends that the AJ's credibility findings were
contrary to the evidence at the hearing. Specifically, complainant
contends that she was the only nurse who was given a memorandum regarding
ineffective communication, that the memorandum was issued ten days after
complainant filed a formal EEO complaint, and that the responsible manager
provided different explanations during the course of her testimony.
Complainant also contends that the agency's progressive discipline
procedures were violated because the documentation of discipline was
insufficient. In addition, complainant also contends that she was
assigned duties in violation of her medical restrictions and could have
sustained further injury as a result.
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
factual findings are supported by substantial evidence in the record, and
accordingly must be upheld. In reaching this conclusion, we do not reach
the issue of whether or not complainant is a "qualified individual with
a disability," as required to establish a prima facie case of disability
discrimination under the Rehabilitation Act. Rather, we find that even
assuming arguendo complainant is a qualified individual with a disability,
she was not subjected to discrimination on the basis of disability or any
other alleged basis. Further, we note that if complainant's disability
discrimination claim is construed as an alleged denial of reasonable
accommodation, the AJ's finding that complainant's medical restrictions
were not violated is supported by substantial evidence in the record,
in particular testimony the AJ credited that other nurses were assigned
to lift patients while complainant bathed them.
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 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
January 12, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.