0120103058
12-23-2010
Linda Bonham, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Linda Bonham,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103058
Agency No. 2003-0554-2009102735
DECISION
On June 30, 2010, Complainant filed an appeal from the Agency's June 2,
2010, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts
it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Licensed Practical Nurse at the Agency's Ambulatory Care Service
facility in Eastern Colorado Healthcare System. The record indicated
that Complainant was hired on April 27, 2008, for a term not to exceed
April 29, 2009. The record indicated that Complainant had a bulging
disc related to scoliosis which she has had since she was 13 years old.
Complainant underwent surgery in November 2008 and was released to return
to full duty on December 29, 2008. Complainant returned from surgery
without restrictions, although with a cane for six weeks related to
an issue with her hip. During the year of Complainant's term with the
Agency, the record indicated that she used 147 hours of leave and over
220 hours of leave without pay (LWOP).
At this time, in January 2009, Complainant indicated that she became
aware of an announced project. Complainant asked to be assigned to
the new project, however, her manager (Manager 1) denied the request.
In March 2009, Complainant had asked to attend a writing class provided
by the Agency. However, the request was denied by her other manager
(Manger 2). Further, on April 17, 2009, Complainant was given written
notification from Manager 1 that her temporary term position would
terminate at the end of the term, effective April 29, 2009.
On August 3, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of disability (scoliosis
and neck fusion) when:
1. In January 2009, Complainant's request for reassignment to a project
was denied;
2. On March 9, 2009, Complainant's request to attend a writing class
was denied by management; and
3. On April 17, 2009, management issued Complainant written notification
that her term employment will expire on April 29, 2009, without
extension.
The Agency accepted claims (2) and (3) for investigation. The Agency
dismissed claim (1) finding that Complainant failed to raise the
matter in a timely manner with the EEO Counselor pursuant to 29
C.F.R. �1614.107(a)(2). The Agency noted that Complainant made contact
on April 24, 2009, well beyond the 45 day time period as related to claim
(1). The Agency conducted an investigation on the remaining claims.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right
to request a hearing before an EEOC Administrative Judge (AJ). When
Complainant did not request a hearing within the time frame provided in
29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
This appeal followed without comment.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
Claim (1)
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the
Commission to extend the time limit if the Complainant can establish that
Complainant was not aware of the time limit, that Complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence Complainant
was prevented by circumstances beyond her control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the Agency or Commission.
Upon review of the record, we find that Complainant did not contact the
Agency until April 29, 2009. This was well beyond the 45 day time limit.
Complainant has not provided any reason on which to base an extension
of the time limit. Therefore, we affirm the Agency's dismissal of claim
(1) pursuant to 29 C.F.R. �1614.107(a)(2).
Claims (2) and (3)
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then
shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at
issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we
find that the Agency has provided legitimate, nondiscriminatory reasons
for its decision to deny Complainant training and to not extend her term
employment. Manager 2 stated that she could not provide Complainant
with the training because Complainant made the request one day before
the training was to occur. Manager 2 indicated that the training was
not critical for Complainant's position and for reasons of staffing;
Complainant could not attend the requested training. As to the Agency's
decision to allow Complainant's term employment to expire, Manager
1 indicated in her affidavit that based on the current staffing and
budget concerns, she did not require Complainant on staff. As such,
Complainant's term employment was allowed to expire.
Complainant asserted that the Agency's reasons were pretext for
discrimination. We note that Complainant has not shown that Manager 2's
reason for the denial was pretext for discrimination. As to the decision
to not extend her term, Complainant claimed that it was based on her
condition because the reason she was given in writing for the termination
by Manager 1 was her excessive leave usage. We note that Complainant has
only provided medical documentation showing that the leave she used from
November 2008 and December 2008 were related to a surgery. However,
the record showed that Complainant's excessive leave usage existed
during the whole time she worked for the Agency. Complainant has not
provided any support for the leave and LWOP she used for the whole time
she worked for the Agency from April 2008 through April 2009. As such,
we cannot find that Manager 2's reasons for allowing Complainant's term
to expire were based on a discriminatory animus. Therefore, we conclude
that Complainant has not shown that she was subjected to discrimination
in violation of the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 23, 2010
__________________
Date
2
0120103058
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103058