01971869
03-10-1999
Yolanda C. Nieves-Parrilla, Appellant, v. Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.
Yolanda C. Nieves-Parrilla v. Department of Veteran's Affairs
01971869
March 10, 1999
Yolanda C. Nieves-Parrilla, )
Appellant, )
) Appeal No. 01971869
v. ) Agency No. 94-1936
) EEOC No. 160-95-8553X
Togo D. West, Jr., )
Secretary, )
Department of Veteran's Affairs, )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq., and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The Commission accepts this appeal in accordance with EEOC Order
No. 960.001.
Appellant, who was employed as a Pharmacy Technician, PS-5 with the
agency's West Haven Medical Center in West Haven Connecticut, filed a
formal complaint of discrimination in which she claimed discrimination
on the bases of race (Hispanic) and physical disability (Irritable
Bowel Syndrome (IBS)) when her probationary employment was terminated
by letter dated May 10, 1994. The agency accepted the complaint and
conducted an investigation. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission administrative judge (AJ). A hearing was conducted on July
30 and 31, 1996.
On September 18, 1996, the AJ issued a recommended decision (RD) finding
no discrimination. The AJ concluded that appellant established a prima
facie case of discrimination on the basis of race in that appellant and
Comparative 1 (Black) were terminated during their probationary periods
for poor attendance, but Comparative 2 (White) was not terminated for poor
attendance at the conclusion of her probationary period. However, the AJ
also found that the agency had articulated a legitimate, nondiscriminatory
reason for its actions. Specifically, the Acting Chief of the Pharmacy
testified that he and the Assistant Chief decided to terminate appellant
because of her continuous absences from work while on sick leave or leave
without pay. Although the agency did not terminate Comparative 2, even
though she also had attendance problems, the Acting Chief testified that
Comparative 2 had been involved in a car accident, which the AJ found
to be a contributory cause of Comparative 2's attendance problems.
Furthermore, the AJ found that he not only considered total hours
absent from work, but also took into account the total "occurrences"
an employee had. That is, the total amount of times an employee called
in sick. According to the Acting Chief, the total amount of occurrences
was important in that it was more difficult to reschedule employees'
coverage on short notice, as when an employee calls in that very day
to explain that they will not be in. The AJ found that appellant was
absent a total of 23 occurrences, Comparative 1 had 21 occurrences and
Comparative 2 had 12 occurrences.
The AJ further found that appellant had failed to prove that the agency's
reason was pretext for discrimination on the basis of race. Specifically,
appellant admitted that the agency had brought her attendance problem
to her attention in March 1994, but that she incurred an additional
eight absences subsequent to this meeting. In addition to this meeting,
appellant had been notified of her attendance problems in her progress
review dated November 16, 1993, when her supervisor noted that she was
"frequently absent", and therefore did not meet the "dependability"
element in her progress review.
Appellant presented an agency policy statement which states, among other
things, that approved leave, whether sick leave or leave without pay, is
not considered for the basis of a disciplinary action unless the employee
has misrepresented the reason for the absence. However, the Acting Chief
testified, without contradictory evidence from appellant, that such
policy is not applicable to probationary employees such as appellant.
Thus, the AJ found that appellant failed to prove, by a preponderance
of the evidence, that the agency discriminated against her on the bases
of race, when it terminated her during her probationary period.
With respect to appellant's allegation regarding her disability, the AJ
found that appellant was a person with a disability in that she suffered
from an impairment which substantially limited a major life activity.
Furthermore, the AJ found that appellant was a "qualified person with a
disability" in that she could perform the essential functions of the job.
Appellant argued that the absences were as a result of her disability,
and that they therefore should have been discounted as a basis for her
termination. Although the AJ found that agency officials were aware of
appellant's disability at the time they made the decision to terminate
her, he also found that appellant failed to establish the requisite
nexus between her disability and the agency's decision to terminate her.
The record reveals that appellant supplied medical documentation for 13
of her 23 absences. Of those 13, the AJ found that 8 were unrelated to
her disability. Alternatively, only 5 of the absences for which she
supplied documentation, were as a result of her disability. Thus, in
the absence of any other evidence which established that her additional
absences were related to her disability, the AJ found that appellant
had failed to prove the requisite nexus between her disability and the
agency's decision to terminate her. The AJ also noted that appellant's
recollection at times during the hearing was questionable. In sum, the
AJ found that appellant had failed to prove, by a preponderance of the
evidence, that the agency discriminated against her when it terminated
her during her probationary period.
On November 22, 1996, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant
facts and properly analyzes the appropriate regulations, policies
and laws. The Commission has reviewed the parties' statements on
appeal and discerns no basis in which to disturb the AJ's finding of
no discrimination. Appellant argues that Comparative 2 had more hours
of sick leave than appellant did, but was not terminated. We note that
the agency maintained that occurrences were also considered in that it
was more difficult to reschedule when employees called in sick that day,
as opposed to when there was advance notice. In light of the fact that
appellant was terminated because of the "efficiency of the service", we
find that the agency's reasoning in this regard is supported, and that
appellant's figures do not prove by a preponderance of the evidence that
the agency's reasons for its actions were pretext for discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 10, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations