0120120657
05-15-2012
Nelia Lopez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Nelia Lopez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120657
Hearing No. 520-2011-00252X
Agency No. 200H06302010103203
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 8, 2011 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Clerk at the Agency's Health Care facility in New York, New York. On July 2, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII when: 1) she did not receive a monetary performance award for fiscal year 2008 and 2) she did not receive a "Quality Step-rate Increase" ("QSI") for fiscal year 2009.
At the conclusion of the investigation, Complainant was provided 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 within the time frame provided in 29 C.F.R. � 1614.108(f).
On October 24, 2011, the AJ issued a decision after a hearing finding no discrimination. In reaching this decision, the AJ determined that even if Complainant could establish a prima facie case, the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Concerning Complainant's monetary performance award for federal fiscal year 2008, Complainant's supervisor stated that in the fall of 2008, she rated Complainant as an "Outstanding" employee on the Agency's 2008 fiscal year performance appraisal form. An Outstanding" performance rating is the highest Agency rating available. Complainant's supervisor further stated that she also forwarded the paperwork to Complainant's second-level supervisor (SLS), who recommended that Complainant receive a cash award in appreciation of Complainant's 2008 work performance. However, the Agency's Human Resources Department (HRD) returned the paperwork for Complainant's cash award citing insufficient written examples to support an Agency cash award. Finally, both of Complainant's supervisors maintained that due to the several months of delay in re-submitting Complainant's paperwork to the HRD for further review, the Agency determined that it was simply too late for Complainant to be considered for a 2008 cash award. The second-level supervisor noted that the administrative delay caused a total of five (5) employees, which included Complainant to lose cash award payments in 2008. According to proffered testimony, the SLS basically placed the cause of the delay on the shoulders of Complainant's immediate supervisor who, for her part, testified that she returned the completed paperwork as quickly as she could to the SLS. In the end, it is undisputed that Complainant did not receive a cash award for fiscal year 2008, although both of Complainant's supervisors had submitted the original paperwork to the HRD for review. Regarding the QSI for fiscal year 2009, the SLS stated that Complainant was not recommended for a QSI because of Complainant's refusal to sign her 2009 performance appraisal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ 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. Nat'l Labor Relations Bd., 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
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). She must generally 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
On appeal, Complainant mainly notes that she should not have suffered as a result of the Agency's mishandling of her performance awards. However, Complainant has not produced evidence to show that the Agency's explanations are a pretext for discrimination.
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 order 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.
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
May 15, 2012
__________________
Date
2
0120120657
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120657