0120072618
09-07-2007
Derriell Dorsey, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Derriell Dorsey,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072618
Hearing No. 520200600167X
Agency No. 200H06202005103581
DECISION
On May 8, 2007, complainant filed an appeal from the agency's April 16,
2007, final order concerning his 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
Complainant, a Registered Nurse at the agency's Montrose VA Medical
Center in Montrose, New York, filed an EEO complaint alleging that he was
discriminated against on the bases of religion (Baptist) and disability
(hypertension) when:
he was required to work night shifts and weekend rotations
in order to accommodate the religious beliefs of two Muslim
nurses.
The AJ assigned to the case determined sua sponte that the complaint
did not warrant a hearing and over the complainant's objections, the AJ
issued a decision without a hearing finding no discrimination. The AJ
accepted the agency's explanation that it temporarily accommodated the
religious beliefs of two nurses which resulted in complainant having to
work additional shifts. The AJ found that the temporary accommodation
affected not just complainant, but all non-Muslim employees, regardless
of their disability status or their religion. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
The Commission concludes that the AJ's finding that no discrimination
occurred is correct as a matter of law.1 That is, the record reflects no
dispute that the agency's temporary rotational schedule was instituted to
accommodate the religious beliefs of two Muslim nurses and not because of
complainant's religion or disability status. After a time, the agency
reverted back to a full rotational schedule to include all nurses in
the unit. Complainant failed to demonstrate that there existed a genuine
issue of material fact or that the agency's explanation was a pretext
for discrimination. 29 C.F.R.�1614.109. Therefore, the Commission
concludes that the AJ's decision finding no discrimination was correct.
CONCLUSION
Based on a thorough review of the record and there being no additional
comments of either party on appeal, the Commission concludes that the AJ's
issuance of a decision without a hearing finding no discrimination was
correct as a matter of law. For these reasons, the Commission affirms
the agency's final action.
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
__9/07/07________________
Date
1 The Commission's analysis assumes without specifically deciding
that complainant is an individual with a disability as defined by the
Rehabilitation Act as he alleged.
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0120072618
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072618