___________________________________ Bertha Duncan, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01973452 (E.E.O.C. Jan. 15, 1999)

01973452

01-15-1999

___________________________________ Bertha Duncan, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Bertha Duncan v. Department of Veterans Affairs

01973452

January 15, 1999

___________________________________

Bertha Duncan, )

Appellant, )

)

v. )

) Appeal No. 01973452

Togo D. West, Jr., ) Agency No. 96-0925

Secretary, ) Hearing No. 160-96-8528X

Department of Veterans Affairs, )

Agency. )

___________________________________)

DECISION

Appellant filed a timely appeal with this Commission on March 20, 1997,

from a final agency decision ("FAD") dated February 27, 1997, concerning

her complaint alleging employment discrimination in violation of the

Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �621

et seq. In her complaint, appellant alleged that she was discriminated

against on the basis of age (DOB 7/27/40) when: (1) management harassed

her by falsely charging her of patient abuse, temporarily reassigning her

from her ward, and investigating the false charge and (2) she was found

guilty of patient abuse and suspended for the infraction. This appeal

is accepted in accordance with the provisions of EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

At the time in question, appellant was employed by the agency as a

Licensed Practical Nurse("LPN") at the St. Albans VA Extended Care

Center in St. Albans, New York. On March 23, 1995, appellant was

bathing and dressing a particularly difficult patient, when according

to appellant, she noticed that the patient had a chord twisted around

his neck. She stated that, as she started to untangle the chord, the

patient started swinging his hands in her face to which she responded by

putting her hands up to defend her face. Appellant stated that, when

she put her hands up, the patient grabbed her thumb and twisted it in

a painful manner. She further stated that, after she pried her thumb

free, she did not retaliate against the patient. The patient stated

that appellant was handling him in a rough manner to which he responded

by grabbing and twisting her thumb. He further stated that, after he

grabbed her thumb, appellant punched him in the nose three times.

Appellant reported the incident and was reassigned until an investigation

could be performed. On June 25, 1995, the Administrative Board of

Investigation issued a report concluding that appellant was guilty of

patient abuse and recommended that appellant receive disciplinary action

as deemed appropriate by the Chief of Nursing Services. As a result,

appellant received a fourteen-day suspension in November of 1995.

Believing that she was the victim of discrimination, appellant sought

EEO counseling, and thereafter, filed a formal EEO complaint on December

28, 1995. Appellant alleged discrimination on the basis of age, because

management had been targeting older employees for disciplinary actions

in an attempt to terminate them. The agency accepted the complaint for

investigation and complied with all of our procedural and regulatory

prerequisites. Subsequently, appellant requested a hearing before an

EEOC Administrative Judge ("AJ"). Determining that there was no genuine

dispute of material fact, the AJ issued a Recommended Decision ("RD")

Without a Hearing, on December 31, 1996, finding no discrimination.<1>

In her RD, the AJ concluded that appellant failed to establish a prima

facie case of age discrimination. The AJ found that there was no

evidence of similarly situated employees not in appellant's protected

group who were treated better than appellant, nor evidence to support

her contention of age-based harassment. In its FAD, the agency adopted

the RD. On appeal, appellant contends that the AJ should not have issued

a decision without a hearing because appellant was not provided sufficient

discovery regarding disciplinary action taken against Registered Nurses

("RNs"), whom appellant considered similarly situated to LPNs.<2>

Appellant also contends that her EEO investigation was inadequate and

that a hearing would have clarified some of the investigation issues.

Pursuant to 29 C.F.R. �1614.109(e)(3), if an AJ "determines upon his or

her own initiative that some or all facts are not in genuine dispute,

he or she may, after giving notice . . . issue findings and conclusions

without holding a hearing." This section is patterned after the summary

judgment procedure set forth at Rule 56 of the Federal Rules of Civil

Procedure. The United States Supreme Court has stated that summary

judgment is appropriate where the adjudicator determines that no genuine

issue of material fact exists, as governed by the applicable substantive

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue

is genuine if the evidence is such that a reasonable fact-finder could

find in favor of the non-moving party. Oliver v. Digital Equip. Corp.,

846 F.2d 103, 105 (1st Cir. 1988).

After a careful review of the record, the Commission finds that the AJ

properly determined that there was no genuine issue of material fact

in this case. Specifically, we find that appellant failed to set forth

specific facts showing that there was a genuine issue still in dispute.

In response to the AJ's notice of her intention to issue a RD without a

hearing, appellant asserted that she should be granted a hearing because

the EEO investigator made the incorrect statement that she had not

been suspended, and because she was not provided discovery concerning

prior discipline of RNs. However, the AJ fully considered appellant's

suspension in her RD and correctly found that evidence concerning the

RNs was not relevant because they were not similarly situated employees.

As to the merits of appellant's complaint, the Commission has reviewed the

record, consisting of the investigative file, the AJ's correspondence,

the appellant's preliminary statement, the RD, the FAD, and appellant's

statement on appeal. The Commission concludes that the AJ accurately

set forth the facts giving rise to the complaint and the law applicable

to the case. The Commission further concludes that the AJ correctly

determined that appellant had not established a prima facie case of

age discrimination. Accordingly, it is the decision of the Commission

to AFFIRM the FAD which adopted the AJ'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 the 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. � l6l4.604(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. 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:

Jan 15, 1999

__________________ _______________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 Appellant timely objected to the issuance of a Decision Without a

Hearing.

2 The AJ found that the two types of nurses were not similarly situated

because LPNs are Title 5 employees who are subjected to different

disciplinary rules and review procedures than RNs, who are Title 38

employees. See e.g., Talley v. United States Postal Serv., 33 Fair

Empl.Prac. Cas. (BNA) 233, 238 (E.D.Mo. 1982), aff'd 720 F.2d 505 (8th

Cir. 1983), cert. denied, 446 U.S. 952 (1984).