0120073096
09-14-2007
Norma Torres, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Norma Torres,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073096
Agency No. 200406592006100919
Hearing No. 430200600262X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 14, 2007 final order 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. Complainant alleged that the agency
discriminated against her on the bases of race (Hispanic), national origin
(Puerto Rico), and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when: (1) on January 15, 2006, the
agency detailed her out of Nursing Education to the Education Center for
90 days; and (2) on March 21, 2006, the agency continued the detail for
another 90 days.
The record indicates that, on January 4, 2006, complainant received a
memorandum from her Supervisor (S1) informing her that she was detailed
to the agency's Evaluation Center, Emergency Department (ED) for a
period of 90 days starting on January 15, 2006. S1 stated that the
Associate Executive Nurse (AEN) instructed her to send one (1) of the
Nurse Educators to the ED due to a nursing crisis. S1 stated that she
selected complainant as she was the least senior. Complainant protested
her detail to the AEN on the grounds that she was not a critical care
Nurse and she had no emergency room experience. Complainant stated that
more experienced Nurses were available and volunteered to work in the
Evaluation Center, ED, but were not detailed. Complainant stated that
during the time she was detailed she received insufficient orientation
and training. During the 90-day detail, complainant went on military
leave for one (1) month; when she returned, the detail was extended for
another 90 days by the Nurse Manager of the ED. Complainant compared
herself to a White male Nurse who is experienced in the ED and was
detailed, but returned to his regular unit after several months.
The EEOC Administrative Judge (AJ) issued a decision without a hearing and
initially found that complainant failed to establish a prima facie case
of discrimination, as there were no similarly situated employees outside
of complainant's protected groups who were treated differently under
similar circumstances. Further, the AJ found that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, complainant
was detailed due to a shortage of Nurse staff in the Evaluation Center,
ED. Complainant was chosen for the detail as she was the least senior
Nurse in Nursing Education under Article 12, Section 1C of the agency's
collective bargaining agreement. The AJ then found that complainant
failed to proffer evidence that the agency's articulated reasons for
its actions were more likely than not a pretext for discrimination.
The agency then issued a final order which implemented the AJ's decision.
On appeal, complainant alleged that she was detailed to the Evaluation
Center despite the fact that the three (3) other Clinical Nurse Educators
(2 White females; 1 African-American female) had experience working in
the Evaluation Center. Complainant further alleged that there were
other Nurses (including a White male) who volunteered to work in the
Evaluation Center, yet agency senior management insisted on detailing her.
Complainant also noted when her detail to the Evaluation Center was
extended for another 90 days, she requested a meeting with the AEN,
who did not attend the meeting. Complainant further alleged that her
detail to the Evaluation Center was part of a pattern of hostile work
environment against her by agency management.
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 agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.1 The Commission finds that
the AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists such that a hearing on the merits is warranted.
Furthermore, we concur with the AJ's finding that assuming, arguendo,
complainant established a prima facie case of discrimination, the agency
articulated legitimate, nondiscriminatory reasons for its actions,
namely that complainant was detailed as she was the least senior Nurse
in Nursing Education and that there is no evidence of pretext.2
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
___9/14/07_______________
Date
1 In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
2 The record reflects that there were no volunteers for the detail at
issue from Nursing Education, which led to complainant's being detailed.
The male Nurse referenced by complainant was not similarly situated to
complainant as he worked in a unit other than Nursing Education, and
the record reflects that he volunteered to work a tour in the Emergency
Department for overtime after he completed the detail he was assigned
to during the relevant time.
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0120073096
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073096