0520120450
11-09-2012
Susan J. Matulevich, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Susan J. Matulevich,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120450
Appeal No. 0120103121
Agency No. 200H-0506-2008104657
DENIAL
Complainant timely requested reconsideration of the decision in Susan J. Matulevich v. Department of Veterans Affairs, EEOC Appeal No. 0120103121 (May 17, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (over 40) and sex (female) when: (1) on August 4, 2008, she was advised she could no longer report to duty at 11:45 p.m. as she had been doing since her appointment in April 2007; and (2) on August 5, 2008, she was constructively discharged when she was forced to resign from her position as a Registered Nurse (RN) in lieu of being terminated.
The appellate decision affirmed the Agency's final decision, which found that Complainant failed to prove that she was subjected to age and sex discrimination as alleged. The appellate decision assumed, arguendo, that Complainant established a prima facie case of discrimination and found that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incidents.
The appellate decision found that, prior to the alleged incidents, Complainant worked as a part-time RN in the Medical Surgical Unit with the duty hours of 11:30 p.m. to 8:00 a.m. In addition, the appellate decision found that, when Complainant worked in the Medical Surgical Unit, her supervisor informally allowed her to report work at 11:45 p.m., 15 minutes after the start of her shift, in order to accommodate her full-time non-Agency job that ended at 11:30 p.m. Further, the appellate decision found that, at the time of the alleged incidents, Complainant worked as a RN in the Inpatient Psychiatric Unit.
The appellate decision cited the following testimony from the Inpatient Psychiatric Unit Supervisor (S1): (a) in May 2008, Complainant contacted him about transferring to the unit; (b) in June 2008, he offered Complainant a full-time RN position in the unit; (c) in July 2008, Complainant worked part-time at the Medical Surgical Unit and part-time at the Inpatient Psychiatric Unit because the former could not release her until the end of the month; (d) although Complainant worked on a part-time basis in the Medical Surgical Unit, it was his understanding that she would be transitioning to a full-time position in the Inpatient Psychiatric Unit; (e) on August 4, 2008, when he met with Complainant to go over the monthly schedule, she told him that she could not work full-time in the unit, she asked for a part-time position, and he told her that there was no part-time position; (f) on August 4, 2008, Complainant also told him that she planned to arrive at 11:45 p.m. for shift and he told her that it was against Agency policy for her to report to work late on a regular basis; (g) on August 5, 2008, Complainant did not come to work but instead called him and asked him if she could resign in lieu of being fired; and (h) he granted Complainant's request, but stated that he did not terminate her or ask her to resign.
The appellate decision found that, although Complainant initially asked S1 about a part-time RN position in the Inpatient Psychiatric Unit, she was clearly informed that she was hired as a full-time RN with the duty hours from 11:30 p.m. to 8:00 a.m. In addition, the appellate decision found that, regardless of any apparent miscommunication or misunderstanding, there was no evidence of a discriminatory motive.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration,1 Complainant contended that the appellate decision involved a clearly erroneous interpretation of material fact. Among other things, Complainant argued that S1 provided false testimony and that the appellate decision relied on that false testimony in finding no discrimination. Specifically, Complainant asserted that S1 hired her for a part-time position and not a full-time position. In addition, Complainant asserted that S1, before hiring her, knew about her occasionally needing to report to work at 11:45 p.m. and should have mentioned it if it was a problem. Further, Complainant asserted that S1 fired her on August 4, 2008 when, in responding to her question about whether or not he was firing her, S1 stated, "Take it any way you want, but you're not working here." Finally, Complainant asserted that S1 fired her because he wanted to keep the three male nurses that he had hired in July 2008.
In opposition, the Agency argued that Complainant did not provide any evidence that S1 lied during the investigation. In addition, the Agency argued that, even if S1 lied, Complainant did not demonstrate any connection between his alleged lies and her age or sex.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant has not shown that the appellate decision clearly erred when it found the Agency's actions were not based on her age or sex.
Here, Complainant has not shown that S1 treated her differently from similarly situated employees that are male or under 40 years of age. First, there is no evidence that S1 allowed other RNs under his supervision to report to duty, either regularly or occasionally, 15 minutes after the start of their shifts. Second, there is no evidence that S1's actions pertaining to the events of August 4, 2008 were discriminatory.
Complainant essentially argued that she was forced to resign because S1 hired her as a part-time RN and then, on August 4, 2008, informed her that he did not have a part-time position available for her. The documentation in the record, however, supports the appellate decision's finding that, although Complainant initially asked about a part-time position, S1 hired her for a full-time position.
Specifically, the record contains the following emails between Complainant and S1: (i) on May 6, 2009, S1 asked if Complainant was still interested in a part-time position; (ii) on May 9, 2008, Complainant stated that she was interested in a part-time position for now; (iii) on May 13, 2008, S1 stated that he currently had two full-time positions available but did not have a part-time position available, and asked if Complainant would be able to begin orientation for a full-time position; (iv) on May 19, 2008 and May 27, 2008, Complainant responded to S1's May 13, 2008 email but did not indicate that she was unwilling to work a full-time position or that she would only accept a part-time position. Moreover, according to Complainant's SF-50, Notification of Personnel Action form, she resigned from a full-time nursing position.
We emphasize that "[t]he burden is on the requesting party to make a substantial showing that its request meets one of the two prerequisites for a granting of reconsideration." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VII.B.2 (Nov. 9, 1999). We find that Complainant has not met that burden.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120103121 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
___11/9/12_______________
Date
1 Regarding Complainant's questions in her request for reconsideration about who to file a civil action against and obtaining a court-appointed attorney, we advise Complainant to review the sections below titled "Complainant's Right to File a Civil Action" and "Right to Request Counsel."
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520120450
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120450