01a03820
02-12-2001
Nancy Alywahby, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Nancy Alywahby v. Department of Veterans Affairs
01A03820
02-16-01
.
Nancy Alywahby,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A03820
Agency No. 97-1496
Hearing No. 160-97-8677X
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from a final agency decision (FAD) concerning
her allegation that the agency discriminated against her in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> The appeal is accepted by the Commission in accordance with
29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether complainant proved that she was
discriminated against because of her previous EEO activity<2> when
she was harassed (verbal counseling, threatened with termination),
received a �Fully Satisfactory� performance rating, and had her duty
hours changed.
BACKGROUND
Complainant filed a formal complaint on January 14, 1997, alleging the
above issues. Following an investigation, she was provided a copy of the
investigative file and notified of her right to request a hearing before
an EEOC Administrative Judge (AJ). In August 1999, a hearing was held.
On March 8, 2000, the AJ issued a decision finding that complainant
was not discriminated against because of reprisal. On March 27, 2000,
the agency issued a final order that implemented the decision of the AJ.
It is from this decision that complainant now appeals.
Complainant, a part-time geriatric nurse practitioner at the agency's
Extended Care Facility in Brooklyn, New York, alleged that the agency
retaliated against her for having engaged in prior EEO activity when:
(1) she received a September 17, 1996 report of verbal counseling
from A-1, the Associate Chief of Staff for Geriatric Extended Care,
for failing to diagnose the fractured hip of an elderly patient; (2)
she learned on September 25, 1996, her supervising physician, Doctor M,
had been asked by A-1 to �write up� complainant in order to get her fired;
(3) on October 21, 1996, she received a �Fully Satisfactory� performance
rating; and (4) on January 12, 1997, management changed her duty hours.
According to the record, complainant engaged in EEO activity in April
1996, when she filed a complaint against A-1. A-1 provided an affidavit
in November 1996. He also spoke to the EEO counselor about the matter.
During the relevant period, complainant and Doctor M were assigned to Ward
F-2. In the absence of a staff physician, complainant acted as a primary
care provider. Her immediate supervisor was B-1. Her second-level
supervisor was B-2, Associate Chief of Nursing Services. In February
1996, A-1 issued a memorandum that set assignments and back-up assignments
for nurse practitioners and physicians. Complainant was assigned as a
back-up for a number of wards. As such, she was the back-up for D-1,
the primary nurse practitioner on Ward F-3. Complainant and C-1 were the
only part-time nurse practitioners at the facility. C-1 was, however,
on maternity leave during the period in question.
The record shows that, in the absence of D-1, complainant was assigned
duties on Ward F-3 from August 26-28; however, she actually worked one
day, August 28, 1996, on the ward. That day, Doctor M asked complainant
to take a second x-ray of an elderly patient who had been injured on
August 6, 1996. Apparently, the first x-ray had been inconclusive. After
ordering the x-ray, complainant did not return to work until September 3,
1996 when she reported for work on Ward F-2. On September 6, 1996, D-1
received the results of the x-ray that complainant ordered. The results
indicated that the patient had a fractured hip. On September 10, 1996,
complainant received a written report of verbal counseling from A-1.
Complainant maintained that she should not have been counseled by A-1
because, among other things, her interaction with the patient and her
time on Ward F-3 were minimal. She also noted that there had been no
previous indication of problems with the patient or that a fracture had
been suspected, her x-ray report was left in the Communication Book,
as was the custom, and that D-2, another nurse practitioner, replaced
her as back-up nurse on Ward F-3 on August 29 and 30, 1996. There is
no dispute that D-2 was not counseled about this incident.
With regard to complainant's other allegations, two weeks after receiving
A-1's report of counseling, complainant maintained that Doctor M told
her that A-1 had instructed her, Doctor M, to �write up�complainant in
order to fire her. Doctor M, according to complainant, told her that
she would not comply with A-1's directive. On October 21, 1996, B-2
issued complainant a �Fully Successful� annual appraisal. The previous
year her rating had been �Highly Successful.� On January 12, 1997, the
agency increased complainant's evening hours to two evenings per week,
for a total of eight evenings per month. Complainant was the only nurse
practitioner whose evening hours were increased. The duty roster was
signed by both A-1 and B-2, who testified that the change had been made
by both of them.
A-1 testified that medical personnel were too dilatory in diagnosing the
patient's fracture. According to A-1, he issued the same verbal counseling
to all physicians and nurse practitioners who were involved in treating
the patient's injury. By examining the medical charts, he was able to
determine the identities of everyone who had treated the patient from
August 6 to September 6, 1996. He counseled complainant because her
name appeared on the medical charts as a primary care provider. He was
also concerned that complainant, upon her return to work on September 3,
1996, did not determine whether the x-ray she ordered indicated that
there was a fracture. D-2 was not counseled because her name did not
appear on the medical charts.
The AJ found that complainant presented insufficient evidence that A-1's
nondiscriminatory reason for verbally counseling her was a pretext for
reprisal discrimination. Although complainant established that her
contact with the patient was minimal, the AJ found that she did not
rebut A-1's contention that everyone involved in the treatment of the
patient was counseled. A-1 made no attempt to ascertain anyone's degree
of culpability. He simply checked the medical charts and noted the names
that appeared therein. Finally, the AJ noted that complainant failed
to establish that any other primary care provider whose name appeared
in the medical chart, failed to be counseled.
With respect to her allegation that A-1 tried to have her fired, the AJ
found that complainant's contention was based on a hearsay statement
that was unsupported by the testimony of both A-1 and Doctor M.<3>
Under questioning, Doctor M indicated that the statement attributed
to A-1 concerned all the nurse practitioners, not just complainant.
Assuming, arguendo, that A-1 had asked Doctor M to �write up� complainant
for the purpose of firing her, the AJ found that there was no evidence
that Doctor M ever �wrote up� complainant, nor was she ever terminated.
Consequently, the AJ found that complainant's allegation, if true, would
amount to �a stray unsubstantiated remark unaccompanied by any concrete
action by the agency.�
With respect to her performance rating, the AJ found that complainant
failed to establish a prima facie case of reprisal discrimination. The AJ
noted that there was no evidence that B-2 was aware of complainant's
previous EEO activity when she rated complainant. B-2 denied any
such knowledge, and complainant presented no evidence to rebut her
testimony. The AJ found B-2's testimony to be credible and convincing.
Assuming that he had found a prima facie case, however, the AJ indicated
that complainant failed to show that her lower rating was motivated by
reprisal. B-2 testified that complainant's overall rating resulted from
the score she received in the area of interpersonal skills. According to
B-2, she had received approximately 25 complaints concerning complainant's
interaction with the clinic staff. Doctor M also gave complainant a
negative assessment concerning her interpersonal skills.
Finally, with respect to the change of complainant's duty hours, the AJ
noted A-1 and B-2's testimony that they changed the nurse practitioner
duty rosters in January 1997. The change resulted in increased evening
hours for complainant. Complainant was the only nurse practitioner to
receive increased evening work assignments. A-1 and B-2 testified that
they increased complainant's evening hours because complainant was the
only part-time nurse practitioner and that the full-time practitioners
were needed for other duties. Complainant, according to the AJ, failed
to establish pretext.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency decision
because the Administrative Judge's ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
________02-12-01______________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.
2Prior to matter at issue here, complainant filed a formal complaint
alleging that her supervisor violated Title VII of the Civil Rights Act
of 1964 by discriminating against her because of her race.
3The AJ found Doctor M's testimony to �be so vague and unreliable� that he
assigned no weight to her testimony in support of the above allegation.