01A20688
03-19-2003
Delia E. Ramos-Rosa, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Delia E. Ramos-Rosa v. Department of Veterans Affairs
01A20688
March 19, 2003
.
Delia E. Ramos-Rosa,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A20688
Agency No. 98-2750
Hearing No. 01A20688
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that, during the relevant period, complainant was
employed as a Staff Nurse at the agency's Medical Center in Philadelphia,
Pennsylvania. The record reflects that complainant, a native of
Puerto Rico, obtained her license as a Registered Nurse (RN) from the
Commonwealth of Puerto Rico. The license required renewal every three
years with the expiration date occurring in her birth month of July.
Complainant had renewed her license by mail until there was a delay in
obtaining her license in 1989. After that, complainant began traveling
to Puerto Rico to deliver her renewal documents and obtain her license.
The record also reflects that complainant was required to take continuing
education courses for a prescribed number of credit hours. For the
1998 renewal, thirty-six (36) credit hours were required. After taking
several courses, complainant possessed 31 credit hours. Two courses
that complainant had registered for were cancelled. By July 21, 1998,
three nurses (complainant and two Licensed Practical Nurses (LPNs))
had not submitted their licenses. Complainant was notified via email
that she had not submitted her license.
The record further reveals that N1 notified the Nurse Manager (M1:
Caucasian) that complainant had failed to submit proof of her license.
M1 spoke to complainant and, after learning that complainant did not
have her license, sought guidance from the Human Resources Department.
The record reflects that M1 was instructed to terminate complainant's
employment immediately.
On August 11, 1998, the license was faxed to the agency and a copy was
sent to complainant. The agency instructed complainant that she had to
follow the appeal process which included writing a letter stating why the
agency should re-hire her. Around the same time, complainant noticed that
the agency was advertising vacancies for nurses. Complainant submitted a
copy of her resume and license. M1 notified complainant that she could
not be re-hired until the appeals process was resolved. On November 9,
1998, complainant was reinstated.
Believing she was a victim of unlawful employment discrimination,
complainant filed a formal EEO complaint on October 7, 1998, alleging that
the agency had discriminated against her on the basis of national origin
(Hispanic) when on August 7, 1998, she was removed from her position.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. Complainant appealed the decision to the
Commission and we REVERSED the agency's final order implementing the AJ's
decision and REMANDED the complaint to the Hearings Unit for scheduling
of a hearing. Ramos-Rosa v. Department of Veterans Affairs, EEOC Appeal
No. 01A10495 (March 28, 2001).
After a hearing, the AJ issued a decision on September 28, 2001, finding
no discrimination. The AJ concluded that complainant failed to establish
a prima facie case of national origin discrimination. Specifically,
the AJ found that complainant failed to demonstrate that similarly
situated employees not in complainant's protected class were treated
more favorably under similar circumstances when their licenses expired.
In point of fact, the AJ noted that the two comparative employees were
LPNs and not RNs like complainant.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends, among other things, that she did establish a prima
facie case of national origin discrimination. In particular, complainant
asserts that other nurses whose licenses had expired were not removed.
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).
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
After a careful review of the record, we find that the AJ correctly
concluded that complainant failed to establish a prima facie case
of national origin discrimination. The Commission also notes that,
even assuming, arguendo, complainant did establish a prima facie case
of discrimination, the agency articulated legitimate nondiscriminatory
reasons for its actions. In reaching this conclusion, we note that the
record evidence indicates that complainant was removed because she failed
to timely renew her nursing license which violated agency regulations.
We also find that complainant has presented no evidence that other
employees similarly situated, and outside of her protected class, were
treated more favorably.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's national origin. We discern no basis to disturb
the AJ's decision. 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 order.
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
March 19, 2003
__________________
Date