01a54604
11-10-2005
Brenda J. Leverett-Mullen, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Brenda J. Leverett-Mullen v. Department of Veterans Affairs
01A54604
November 10, 2005
.
Brenda J. Leverett-Mullen,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54604
Agency No. 200G-0650-2004103333
Hearing No. 160-2005-00318X
DECISION
Complainant filed an appeal from an agency's May 24, 2005 notice of final
action concerning her 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 her complaint, dated August 4, 2004, which was subsequently amended,
complainant, a Voucher Examiner, GS-6, at the agency's Providence
Medical Center, alleged discrimination based on race (African American),
disability (major depression) and in reprisal for prior EEO activity when:
On June 30, 2004, she received a proposed suspension from a Business
Office Manager, effective August 11 through 13, 2004;
On August 31, 2004, she was notified that she was not selected for the
Budget Assistant GS-561-7 position as announced in #04-46; and
In a letter dated September 29, 2004, she was advised that her twelve
week entitlement under the Family Medical Leave Act (FMLA) will expire
on November 5, 2004, that her request for advanced sick leave for any
period beyond November 5, 2004, was denied, and that if she was unable
to return to duty after November 5, 2004, appropriate administrative
action will be taken.
Following the completion of the investigation of her complaint,
complainant requested a hearing on the complaint before an EEOC
Administrative Judge (AJ). On May 11, 2005, the AJ issued a decision
without holding a hearing, finding no discrimination. The agency's
final action implemented the AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review, the Commission finds that the grant of summary judgment
was appropriate, as no genuine dispute of material fact exists.
The AJ stated, assuming arguendo that complainant had established a
prima facie case of discrimination, that the agency has articulated
legitimate non-discriminatory reasons for its actions. Specifically,
the AJ indicated that complainant received the suspension at issue due
to her inappropriate office behavior which included being very loud
to customers and clients, interrupting coworkers, loud singing and
slamming the phones. Complainant's supervisor stated that complainant
was counseled on numerous occasions and she acted sometimes in a very
hostile manner with slamming things around. The supervisor stated
that complainant was previously issued discipline when she received
two verbal counselings in 2003, a letter of counseling in August 2003,
a written reprimand in November 2003. The supervisor noted that the
alleged suspension at issue was put into place while complainant was out
on family medical leave. The Office Manager, confirming the supervisor's
statement, stated that complainant was disruptive, spoke very loud on
the phone, interrupted her coworkers while they were trying to work,
engaged in loud singing, and slammed the telephone.
With regard to the nonselection, the AJ stated that complainant was
not selected as one of the best qualified based on the information
that she provided in her application package. According to the Human
Resource Specialist, complainant's written responses to questions in
her application package did not show an ability to communicate well
both orally and in writing. The Chief Financial Officer also reviewed
the applications, including complainant's application, and confirmed
the foregoing statement. Specifically, the Chief Financial Officer
indicated that all the candidates were fairly close as far as experience
and education and it was the hand written KSAO's (knowledge, skills,
abilities, and other) and the answers to the questions themselves that
made him question complainant's communication skills which caused him
to score complainant's application lower than the others.
With regard to FMLA and sick leave, the AJ stated that complainant was
granted 12 weeks of FMLA which ran out on November 5, 2004, at which time,
she was placed on leave without pay since she had no leave balance.
Complainant returned to work on November 5, 2004. The supervisor
indicated that complainant exhausted all her sick leave and her FMLA was
leave without pay and she did not provide sufficient medical information
for advanced sick leave. The Chief Financial Officer indicated that with
regard to two individuals, named by complainant as comparative employees,
one did not request advanced sick leave, and the other's request was
supported with all the documentation required to allow for approval.
After a review of the record, the AJ determined, and we agree, that
complainant failed to show by a preponderance of the evidence that the
agency's proffered reasons were pretextual.
To the extent that complainant may have been asking for a reasonable
accommodation when her request for advanced sick leave was denied
starting November 5, 2004, we find that complainant did not provide the
agency with evidence showing that an accommodation of advanced sick
leave was necessary for her claimed disability. A note from Doctor
A dated November 1, 2004, states that complainant was diagnosed with
�Social Anxiety� and �general anxiety disorder�, but does not indicate
that any accommodation is necessary for these conditions. The note
from Doctor A dated November 8, 2004 is illegible. Complainant has
provided a translation of the November 8, 2004 note. Assuming that
complainant's translation is accurate, the November 8, 2004 note states
that complainant would perform �better� under �less stressful and less
crowded work places.� The November 8, 2004 note as per complainant's
translation and the November 1, 2004 note are insufficient to show that
some accommodation such as advanced sick leave was necessary for any
purported disability of complainant. Therefore, we find that complainant
was not denied a reasonable accommodation for which she was entitled.<1>
Accordingly, 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 the AJ's issuance of a decision without
a hearing was appropriate and 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
November 10, 2005
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.