0120071867
09-10-2007
Patricia Y. Davis, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Patricia Y. Davis,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071867
Agency No. 200105442005102723
Hearing No. 430200600178X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 15, 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., and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. Complainant alleged that the agency discriminated against
her on the bases of race (African-American), sex (female), and disability
(adjustment disorder with anxiety and depressive mood/PTSD) when she was
harassed and subjected to a hostile work environment. Specifically,
complainant identified the following events: (a) a co-worker (Dr. F)
assaulted her on December 10, 2004, when he took an instrument from her
hand during surgery; (b) she was assigned to work with Dr. F on December
11-14, 2004; (c) she was given a Notice of termination (probationary
period) on May 24, 2005; and (d) the termination was rescinded on June 1,
2005.
Complainant worked as an operating room nurse at the VAMC in Columbia,
SC, and rotated among the departments while in training. An EEOC
Administrative Judge issued a decision without a hearing finding
that, while complainant took offense at Dr. F's manner, she failed
to demonstrate that his or the agency's actions she identified were
pretext for disability, race, or sex discrimination. The AJ found
that complainant did not establish that she was an individual with a
disability, because she did not show that her condition substantially
limited any major life activity. The AJ also held that, assuming
a prima facie case on all bases, the agency set forth legitimate,
nondiscriminatory reasons for its actions, i.e., Dr. F admitted that
he made contact with complainant when he removed an instrument from her
hand; since he was the only urologist; she had to work with him while in
that department; she was not disciplined; the Notice of termination was
reasonable because of complainant's inability to get along with others;
she was not reliable, and did not follow leave procedures; and, when
her termination was rescinded, she did not experience an interruption
in her employment or benefits. With regard to complainant's claim
of harassment/hostile work environment, the AJ found that complainant
did not show that the agency's actions were motivated by race, sex, or
disability and that her mere assertions, without more, did not constitute
probative evidence of discrimination or a hostile work environment.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, whether addressed or not, 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
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
_____9/10/07_____________
Date
1 For the purposes of this decision only, we assumed that complainant
was an individual with a disability as alleged.
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0120071867
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071867