0120081712
08-07-2008
Betsy C. Lucena, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Betsy C. Lucena,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081712
Hearing No. 461-2007-00016X
Agency No. 200L-0629-2006102387
DECISION
On March 3, 2008, complainant filed an appeal from the agency's February
6, 2008 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as an Occupational Therapist at a New Orleans, Louisiana facility of the
agency. Following Hurricane Katrina, complainant was placed on detail
to a Dallas, Texas facility of the agency. In a formal EEO complaint
dated July 12, 2006, complainant alleged that the agency discriminated
against her based on race (Asian), national origin (Asian), sex (female),
color (yellow), and age (over 40) when, on April 3, 2006, it extended
her detail indefinitely to its Dallas, Texas facility.
During the agency investigation, the Chief of Rehabilitation Services
(S1) stated that there was a reduction in full-time equivalent positions
at the New Orleans facility and upper management required the use of
mandate criteria for employee return to the facility after the hurricane.
S1 stated that the criteria applied (1) skill set, (2) a place to live,
and then (3) seniority. S1 stated that, on March 29, the agency informed
complainant of the need for her to remain in Dallas, but she reported
to New Orleans on April 3. Further, S1 stated that complainant was an
inpatient therapist and its inpatient facility had not reopened yet,
but two outpatient therapists returned to an outpatient facility.
Summarily, S1 stated that the agency had to make changes due to the
effects of Hurricane Katrina, but it returned complainant with all
remaining detailed employees to New Orleans in June 2006.
At the conclusion of the agency investigation, complainant was provided
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. The AJ assigned to the case determined that
no genuine issues of material fact exist to warrant a hearing and issued
a decision without a hearing on January 22, 2008. The AJ concluded that
complainant failed to show that the legitimate, nondiscriminatory reasons
articulated by the agency for its action are pretext. Subsequently,
the agency issued a final order fully implementing the AJ's finding that
complainant failed to prove that she was subjected to discrimination
as alleged. The instant appeal from complainant followed.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein; we find that the
issuance of a summary judgment decision by the AJ was appropriate
and AFFIRM the agency's finding of no discrimination. We find that
complainant failed to prove, by a preponderance of the evidence, that
the agency's explanation is a pretext for discrimination. Complainant
failed to show that the agency's action is based on discriminatory
motives.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 7, 2008
__________________
Date
2
0120081712
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120081712