0120055570
10-16-2007
Peggy P. Boone, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Peggy P. Boone,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200555701
Agency No. 2004-0590-2003103
Hearing No. 120-2004-00505X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's final order concerning her equal employment opportunity (EEO) complaint claiming unlawful 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.
On or about July 30, 2003, complainant filed the instant formal complaint. Therein, complainant claimed that the agency discriminated against her on the bases of disability (back injury) and in reprisal for prior EEO activity when:
1. she was harassment by management during May 2003, concerning lunch breaks, duty time and clocking in when returning from lunch, when other staff members were not required to do so;
2. on July 14, 2003, she received a letter from Human Resources requiring her to undergo a Fitness for Duty Examination;
3. on May 20, 2003, she was notified that she was not selected for the position of Human Resources Specialist, GS-0201-9, Target 11, Announcement Number 22-03.
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 timely requested a hearing. Following a hearing on July 12, 2005, the AJ issued a decision finding no discrimination.
In his decision, the AJ determined that complainant did not establish a prima facie case of reprisal discrimination because complainant did not show that she was treated differently than similarly situated individuals outside of her protected class. Specifically, the AJ found that complainant failed to show a nexus or a causal connection between her prior protected activity and the alleged discriminatory events. Regarding the basis of disability, the AJ found that complainant did not show that she is an individual with a disability and that she did not submit sufficient evidence showing that her medical conditions substantially limited any major life activity at the time of the alleged discriminatory events. Specifically, the AJ determined that complainant had a temporary impairment "even if she still suffers from some sequels."2
Regarding the harassment claim, the AJ found that complainant failed to prove she was subjected to harassment sufficiently severe or pervasive so as to render her work environment hostile. The AJ noted that the evidence in the record reflects that complainant's former supervisor was replaced by a new supervisor (S1); and that S1 made several unpopular decisions. Specifically, the AJ noted that the "marching orders" were conveyed to the new supervisor "by the two directors, one who selected him for the job, and another who had replaced the director that had selected him." The AJ noted that the orders consisted of the following: to clean up the backlog in Human Resources; and to take care of the conduct of the Human Resources personnel "which had relaxed somewhat under [former supervisor]." Moreover, the AJ stated that he would not second-guess the agency's personnel decisions.
Regarding claim 1, the AJ noted that S1 issued several counseling memoranda to Human Resources personnel, including complainant, concerning usage of break times. Specifically, the AJ noted that the new supervisor was making an effort to change the production and quality of Human Resources. Regarding claim 2, the AJ noted that S1 requested complainant to undergo Fitness-for-Duty because she was not back to work full-time and was still on the extended half way period of time. S1 stated that according to an Office of Workers' Compensation Program (OWCP) case worker, the OWCP only authorized complainant "to have treatment up through July [2003] and it was my understanding that she was supposed to have been returned to full duty at that time. We were already into October and November and she was still working just half days." Regarding claim 3, the AJ found S1's testimony credible that he chose the selectee for the position of Human Resources Specialist, GS-0201-9, Target 11, because he had too many trainees at the time, and he wanted someone "to hit the ground running." The AJ found no evidence to support complainant's contentions that complainant was more qualified than the selectee.
As an initial matter, the Commission notes that one witness testified by telephone at the hearing held by the AJ. The Commission has held that testimony may not be taken by telephone in the absence of exigent circumstances, unless at the joint request of the parties and provided that specified conditions have been met. See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).3 However, because the facts of this case pre-date Louthen, the Commission will assess the propriety of taking the testimony of some witnesses by telephone, considering the totality of circumstances. Here, it is unclear whether exigent circumstances existed. However, it is clear that there were no issues of witness credibility that might have been impacted by the taking of this testimony by telephone, and neither party objected to the manner in which those witnesses testified. Under these circumstances, even if it is assumed that the AJ abused his discretion by taking testimony by telephone, the Commission finds that his action would have constituted harmless error.
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. National Labor Relations Board, 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.
Having reviewed the record, we find that the evidence substantially supports the AJ's decision. Even if we assume that complainant established a prima facie case of disability and reprisal discrimination, we agree with the AJ that the agency provided legally sufficient legitimate reasons for its actions and that complainant failed to prove that these reasons were pretext.
It is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order because the AJ'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 (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
October 16, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the above referenced appeal number.
2 The Commission presumes for purposes of analysis only, and without so finding, that complainant is an individual with a disability.
3 In Louthen, the Commission has promulgated its policy regarding the taking of telephonic testimony in the future by setting forth explicit standards and obligations on its Administrative Judges and the parties. Louthen requires either a finding of exigent circumstances or a joint and voluntary request by the parties with their informed consent. When assessing prior instances of telephonic testimony, the Commission will determine whether an abuse of discretion has occurred by considering the totality of the circumstances. In particular, the Commission will consider factors such as whether there were exigent circumstances, whether a party objected to the taking of telephonic testimony, whether the credibility of any witnesses testifying telephonically is at issue, and the importance of the testimony given telephonically. Further, where telephonic testimony is improperly taken, the Commission will scrutinize the evidence of record to determine whether the error was harmless, as is found in this case.
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0120055570
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055570