0120110642
03-08-2013
Virginia L. Mueller, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Virginia L. Mueller,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110642
Hearing No. 443-2009-00221X
Agency No. 200J06952009101499
DECISION
On October 22, 2010, Complainant filed an appeal from the Agency's September 29, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency's final decision (FAD) appropriately determined that Complainant was not discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health Aid, GS-640-01, Step 10, at the Agency's Clement J. Zablocki Veterans Affairs Medical Center in Milwaukee, Wisconsin. On May 1, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical) when:
1. the annual pay adjustment which she received in January 2009 was smaller than she believed it should have been;
2. her request for training was denied on or about March 9, 2009;
3. her tour of duty was changed from full-time to part-time status on or about March 29, 2009; and
4. in May 2009 her pay for pay period 9 of 2009 was allegedly $10.00 dollars less than it was for pay period 8 of 2009.1
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 requested a hearing but the AJ dismissed the hearing request because Complainant failed to submit a prehearing report as ordered. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that based on her medical documentation in a prior EEO matter, Complainant was an individual with a disability. However, the Agency found that Complainant failed to establish a prima facie case of disability discrimination because she failed to identify individuals outside of her protected class who were treated more favorably.
Nevertheless, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to claim 1, the Agency found that if Complainant received a smaller pay adjustment for 2009, the Deputy Manager of Human Resources Management Services stated that this was because the adjustment was based on the pay of her position of record, not on her saved pay rate, which was higher.
With regard to claim 2, the Agency found that the training that Complainant requested was not related to her current position. According to the Human Resources Specialist (HRS) who handled her Office of Workers Compensation Program (OWCP) matters, Complainant was not entitled to such training because the training was not related to her job. Moreover, the HRS determined that some of the training might have caused problems with her medical conditions or required clearance from the OWCP.
With regard to claim 3, the HRS stated that Complainant was placed in a part-time position because the OWCP had only approved her to work four hours per day. If Complainant wished to change this, she needed to contact the OWCP.
With regard to claim 4, the Agency found that if Complainant's gross pay was reduced by $10 per pay period in May 2009, it was because the Agency went to a new pay system which corrected Complainant pay to limit her salary such that it did not exceed 150% of the pay for the position. According to the Agency the salary for employees on retained pay cannot exceed 150% of the step 10 for the grade occupied.
The Agency found that Complainant failed to establish that the Agency's proffered reasons were a pretext for discrimination. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant, among other things, contends that she believed her union representative filed the prehearing report with the AJ. To the extent that Complainant is alleging that the AJ erred when she dismissed Complainant's hearing request, we find nothing in the record demonstrates that the AJ abused her discretion. Accordingly, we find that the AJ appropriately dismissed the hearing request and remanded the case to the Agency to issue a FAD.
In response, the Agency requests that we affirm its FAD finding that Complainant was not discriminated against as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
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). Complainant must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming that Complainant established a prima facie case of disability discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as articulated above. Further, we find that Complainant has failed to put forth sufficient evidence that the Agency discriminated against her based on her disability. To the extent that the Agency was limited in its actions based upon OWCP's determinations, we find that this alone does not establish that Complainant was discriminated against.2 Although Complainant contends that there was no reason for her to be limited to part-time work, she failed to demonstrate that the Agency's actions were taken with the intent to discriminate against her. Rather, the Agency informed Complainant that it could not return her to full-time employment without OWCP's approval. We note that nothing in the record supports Complainant's contentions that the Agency discriminated against her as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD finding no discrimination.
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
___3/8/13_______________
Date
1 We note that the Agency dismissed Complainant's claim that she was discriminated against based on disability when on or about October 29, 2006, she was reassigned or downgraded from the position of Program Support Assistant, GS-0303-05, Step 10, to the position of Health Aid, GS-0640-01, Step 10. Because Complainant did not raise the issue of the dismissal on appeal, the Commission exercises its discretion to review only the issues that are specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November 9, 1999).
2 A review of OWCP's determinations is within the jurisdiction of the Department of Labor not the Commission. See Hogan v. Department of the Army, EEOC Request No. 05940407 (September 29, 1994); Gray v. Department of the Army, EEOC Appeal No. 01944944 (August 8, 1995).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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