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).