01a44070
04-12-2005
Stephen E. Shupick, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Stephen E. Shupick v. Department of Veterans Affairs
01A44070
April 12, 2005
.
Stephen E. Shupick,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44070
Agency No. 200M-0579-2003101075
DECISION
Complainant appeals to the Commission from the agency's decision dated
April 29, 2004, finding no discrimination. In his complaint, dated
February 15, 2003, complainant, a Registered Nurse, alleged discrimination
based on disability and in reprisal for prior EEO activity when he was
not promoted from Nurse I to Nurse II in December 2002.<1> The agency,
in its decision, concluded that it asserted legitimate, nondiscriminatory
reasons for its action, which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination,
finds that the agency has articulated legitimate, nondiscriminatory
reasons for the denial of complainant's promotion. Specifically,
complainant's supervisor stated that the agency's Nurse Professional
Standards Board found that complainant met none of four �Criteria�
and none of fourteen �Dimensions� for promotion to Nurse II. She also
stated that the Board members receive the proficiencies, review them
independently and do a worksheet before the actual meeting. Then, at
the meeting the panel discusses each item (criteria for consideration
and dimension for requirements) line by line to reach a consensus.
The Co-Chair indicated that complainant was not promoted since his
performance was not at Nurse II level and other Board members concurred.
Upon review, the Commission finds that complainant failed to show that
the agency's reasons were pretext for discrimination. After a review
of the record, the Commission finds that complainant failed to show,
by a preponderance of the evidence, that he was discriminated against
on the bases of disability or in reprisal for prior EEO activity.<2>
The agency's decision finding no discrimination is AFFIRMED.
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
April 12, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The record indicates that complainant's promotion at issue was presented
to the agency's Nurse Professional Standards Board on November 21, 2002,
and was allegedly denied on December 19, 2002.
2The Commission does not address in this decision whether complainant
is a qualified individual with a disability.