0120123532
01-29-2013
Linda Pouncey, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Linda Pouncey,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123532
Hearing No. 420-2011-00203X
Agency No. 200106192011100195
DECISION
Complainant filed an appeal from an Administrative Judge's decision concerning her 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. Because the Agency did not issue a final Agency decision on the matter, we deem the appeal timely and accept it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Fort Rucker VA facility in Montgomery, Alabama.
On January 24, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity when: (1) she was terminated from her position on August 23, 2010, and (2) on September 3, 2010, her request for reasonable accommodation was not granted.
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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's May 21, 2012 motion for summary judgment, and issued a decision without a hearing on August 10, 2012. When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
The Agency initially dismissed Complainant's reasonable accommodation claim because Complainant was no longer an employee when she made the request. Complainant attempted to reinstate that claim before the AJ on June 5, 2012. However, the AJ found that Complainant's request was untimely made given that Complainant was informed by the AJ on August 30, 2011, that she had thirty (30) days to identify any claims the Agency had dismissed and to comment on the appropriateness of the dismissal.
In addressing Complainant's termination, the AJ found that it was undisputed that, at the same time that she was working for the Agency, Complainant was also employed by a private entity, the Human Resources Development Institute (HRDI), providing nursing care to individuals in group home settings. At some point while working with HRDI, Complainant treated a boil on a patient with a piece of bacon and a 4x4 dressing. The incident was reported to the Alabama Board of Nursing, a state licensing entity not connected to the Agency. As a result of an investigation into the matter, Complainant was put on probation and her nursing license was restricted. Complainant was also fined and required to complete certain training. The nursing board's decision required that Complainant informed any employers, including the Agency, that she had been investigated by the nursing board and had been put on probation.
Because Complainant's position with the Agency as a registered nurse required her to have an unrestricted license as a condition of employment, the Agency terminated Complainant's employment effective August 23, 2010. After her termination became effective, Complainant's attorney, by letter to the Agency dated September 3, 2010, requested reconsideration of the decision citing to Complainant's "disabilities" (gastric stapling in 1994, and treatment for depression, anxiety and stress, including menopause-related stress) that he claimed impacted on her judgment.
In addition, Complainant named two individuals who she alleged had their licenses suspended but were not removed. The AJ found that one had been placed on probation 15 years earlier, but never had her license suspended, and the other had her license suspended in 1999. Both of the comparators worked under a different management team.
The AJ found that even assuming Complainant was a person with a disability, the Agency presented legitimate, nondiscriminatory reasons for terminating her. Further, the AJ noted that Complainant did not establish that the decision maker or supervisors were aware of her disabling conditions at the time the termination decision was made. The AJ also noted that there was no evidence that Complainant ever made any requests for accommodation prior to her termination.
In addressing Complainant's reprisal claims, the AJ noted that Complainant did not have any prior EEO activity and did not identify any protected oppositional activity. The AJ went on to find that even if Complainant could establish a prima facie case of reprisal, she failed to establish a causal connection between any prior EEO activity and the termination decision.
The instant appeal followed. In her appeal, Complainant primarily argues that her claim concerning the denial of reasonable accommodation should not have been dismissed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and no disputes of material fact have been identified.
Dismissal of Complainant's Reasonable Accommodation Request
As an initial matter, we find that the AJ properly refused to address the issue of the denial of reasonable accommodate made after the notice of termination. The AJ indicated that Complainant made her request to reverse the Agency's dismissal of this claim in an untimely manner despite an instruction from the AJ to the contrary. Complainant has not provided any evidence to either dispute or excuse her untimely attempt to seek review of the Agency's dismissal of this issue. Further, we recognize that, in most instances, a request for reasonable accommodation is prospective, not retroactive. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, at Question 36 (rev. Oct. 17, 2002) ("Guidance"). Thus, we note that Complainant's reasonable accommodation request was made following her removal. Complainant has presented no evidence that she sought any kind of accommodation while she was an employee or that she was removed because the Agency did not provide her with any requested accommodation.
Complainant's Termination Claim
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We agree with the AJ that Complainant has failed to show by a preponderance of the evidence that the Agency's reasons for removing her were a pretext for discrimination. The individuals Complainant named were not similarly situated and involved events occurring over ten years earlier under a different management. Complainant does not dispute that her position requires an unrestricted nursing license, and that she informed the Agency that she had been put on probation and had her license restricted by the nursing board, a state entity outside the Agency.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the finding that Complainant was not discriminated against as alleged.
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
January 29, 2013
__________________
Date
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0120123532
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123532