0120141546
09-09-2016
Amina W.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Amina W.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141546
Agency No. 200I-0509-2012-100622
DECISION
On March 21, 2014, Complainant filed an appeal from the Agency's January 29, 2014, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented in this case is whether the Agency correctly decided that Complainant did not demonstrate that she was subjected to disability discrimination when the processing of her retirement forms was delayed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant had retired from her position as a Registered Nurse at the Agency's VA Medical Center in Augusta, Georgia. Complainant's disability retirement was approved with an effective retirement date of February 14, 2012. The retirement process included the completion of an SF-3100, which was an individual retirement record and listed all of the individual's service history. The purpose of the SF-3100 was to determine an individual's "creditable time" for retirement purposes. The Defense Finance Accounting Service (DFAS), rather than the employee's Agency, was responsible for maintaining an accurate SF-3100 and finalizing the form. The finalized SF-3100 would then be transmitted to the Office of Personnel Management (OPM). Complainant maintained that she was discriminated against because the Agency's Human Resources (HR) Specialist did not contact DFAS in a timely manner when it became aware of a processing problem with her form.
On January 3, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (multiple conditions) when as of November 16, 2012, HR officials failed to submit an SF-3100 to the Office of Personnel Management for retirement benefits, even though Complainant's retirement application was approved on February 14, 2012.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected her to discrimination as alleged. The Agency explained that while there was a significant delay in the processing of Complainant's SF-3100, there was nothing in the record that indicated that the delay in processing had any connection to her disability. The Agency indicated that the delay occurred not at the Agency where Complainant was employed, but rather at DFAS, which was the federal Agency charged with the responsibility to finalize the form for submission to OPM. The Agency asserts that once the Agency's HR Specialist was informed of the delay in processing, she acted promptly to resolve the matter. Moreover, the Agency indicated that Complainant did not present any evidence that the Agency's actions were motivated by discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant, for the most part, submitted a series of questions about the disability retirement process. She did not provide any evidence which suggested that discrimination was involved.
The Agency did not submit a brief.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of disability discrimination, the Agency articulated a legitimate nondiscriminatory reason for its action, namely, that the Agency had submitted its documentation to DFAS and that it was DFAS that did not process Complainant's paperwork in a timely manner. The Agency explained that on January 10, 2013, the HR Specialist learned that DFAS had not submitted the SF-3100 to OPM. The HR Specialist indicated that thereafter she continually contacted DFAS by telephone to verify their submission to OPM. OPM received the SF-3100 from DFAS on March 7, 2013. We find that Complainant has not presented any evidence which suggests that the Agency's assertion was a pretext or that discriminatory animus was involved in this matter. Therefore, we find that Complainant has not demonstrated that she was subjected to discrimination.
CONCLUSION
Accordingly, the Agency's FAD which found that Complainant did not show that she was subjected to discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_9/9/16_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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