0120060925
10-31-2007
Jacqueline Brown, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Jacqueline Brown,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200609251
Agency No. 200N-0654-2004100037
Hearing No. 370-2004-00339X
DECISION
Complainant filed an appeal from the agency's final action dated October
26, 2005, finding no discrimination with regard to her complaint.
In her complaint, dated November 21, 2003, complainant, a GS-7 Patient
Services Assistant in the Call Center at the agency's Hospital in Reno,
Nevada, alleged discrimination based on disability (bilateral carpal
tunnel syndrome, hypertension, degenerative disc disease, depression,
and stress) and in reprisal for her prior EEO activity when:
(1) In December 2002, her supervisor assigned her additional duties;
(2) In February and March 2003, the supervisor disapproved her requests
to change her tour of duty;
(3) In March 2003, the supervisor denied her requests for overtime and
compensatory time;
(4) In April 2003, the supervisor disapproved her request for annual
leave in lieu of sick leave;
(5) In April 2003, the supervisor required her to submit medical
documentation;
(6) In April 2003, the supervisor detailed her to another position;
(7) In May 2003, management forced her to accept a GS-6/10 level salary;
(8) In July 2003, management denied her request to be returned to the
GS-7/6 level;
(9) On August 21, 2003, management requested that she provide further
medical documentation to support her request for 160 hours of annual
leave in lieu of sick leave;
(10) On August 22, 2003, management denied her request for annual leave
in lieu of sick leave; and
(11) In September 2003, management did not accept her physician's medical
documentation and put her on leave without pay status from September 29
through October 10, 2003.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On October
7, 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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined and we agree that, assuming arguendo that complainant had
established a prima facie case of discrimination, the agency articulated
legitimate, nondiscriminatory reasons for the alleged actions.
The AJ noted that in October 2002, prior to the alleged incidents,
the supervisor described in the instant complaint became complainant's
supervisor. From the outset, complainant had a poor relationship with
the supervisor. Complainant questioned the supervisor's qualification
for that supervisory position and resented the fact that complainant was
not promoted to that position. Complainant further admitted that the
supervisor treated other people the same way as she treated complainant.
With regard to claim (1), the supervisor stated that complainant
was required to take on additional duties due to shortage of staff.
Complainant acknowledged that her coworker transferred to another unit
and as a result her workload was increased.
With regard to claim (2), complainant made several requests to change her
tour of duty to start 30 minutes earlier so she can come to work with her
husband, who also worked at the same agency clinic in a temporary position
in the Maintenance Health Care System. The supervisor stated that she
could not grant the request at that time due to shortage of staff.
With regard to claim (3), complainant had been coming in early with her
husband, who reported at 6:00 am or at 6:30 am. Despite the agency's
regulations, complainant did not request overtime and compensatory time
for this until after she had already worked the time. Management also
indicated that they did not need anyone in the clinic at 6:00 am or 6:30
am in the morning.
With regard to claims (4) and (5), the supervisor disapproved
complainant's request for six weeks of medical leave due to shortage of
staff. The supervisor stated that she asked complainant for documentation
from her doctors so that the agency could determine how to accommodate
her, and not to harass her or cause her any harm. Complainant did not
take leave.
With regard to claims (6), (7), and (8), complainant was looking for
other positions, GS-7 or below, and she applied for a position at the
GS-6 level in the primary care unit and got the job. She retained her
GS-7 salary. The supervisor stated that she did not demote complainant;
rather complainant requested a voluntary change to a lower grade.
The supervisor also stated that complainant also knew that there was no
guarantee that she would be able to return to another position and that
complainant would have to apply for a GS-7 position.
With regard to claims (9) and (10), complainant requested 160 hours of
annual leave for medical reasons. At that time, she only had 4.25 hours
of sick leave available. Her new supervisor denied the request because
complainant failed to provide the requested medical documentation to
support the request.
With regard to claim (11), the agency stated that complainant failed
to provide the requested medical documentation until October 2003,
at which point, she was given sick leave or other leave retroactively.
Complainant acknowledged that she had been paid accordingly.
After a review of the record, the Commission agrees with the AJ that
complainant failed to rebut the agency's legitimate, nondiscriminatory
reasons for the alleged incidents. Assuming (without deciding)
that complainant was an individual with a disability, the Commission
finds that complainant failed to show that she was denied a reasonable
accommodation or that any agency actions were motivated by discrimination.
Complainant does not allege that she was required to perform her duties
beyond her medical restrictions.
Accordingly, the agency's final action is AFFIRMED.
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
10/31/2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120060925
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036