0120092177
09-21-2009
Angelina C. Orozco, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Angelina C. Orozco,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092177
Agency No. 2003-0671-2007103906
Hearing No. 451-2008-00191X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 31, 2009 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
On December 17, 2007, complainant filed a formal complaint. Therein, complainant claimed that the agency discriminated against her in reprisal for prior EEO activity when:
on August 28, 2007, she received a "satisfactory" rating on her August 27, 2006 through August 27, 2007 annual performance evaluation, when in fact, her rating should have been "outstanding."
On March 10, 2009, a hearing was held before an EEOC Administrative Judge (AJ). After considering the testimony of the witnesses, the AJ issued a bench decision on March 10, 2009, finding no discrimination. Therein, the AJ determined that regardless of whether complainant established a prima facie case of reprisal discrimination, the agency articulated legitimate, nondiscriminatory reasons for its actions. Finally, the AJ concluded that complainant did not prove, by a preponderance of the evidence, that the agency's proffered reasons for its action were a pretext for discrimination.
Complainant's supervisor (S1) stated that she rated complainant satisfactory for the August 27, 2006 through August 27, 2007 rating period. Specifically, S1 stated "how the rating is done is the overall rating is the lowest of the two sections. So, yes, [complainant] received an 'outstanding' in her performance, but her interpersonal was 'satisfactory,' so the whole overall rating is 'satisfactory.'" S1 stated that in regard to complainant's clinical skills, S1 stated "clinical is outstanding and interpersonal was satisfactory." S1 stated that in regard to complainant's nursing practice," complainant "is an outstanding nurse. There isn't anybody in this room that wouldn't want [complainant] to take care of her. I have no problems with her nursing. Nursing is excellent." S1 stated, however, in regard to her interpersonal, complainant "was a little abrasive. She was rude." S1 further stated that she received complaints from employees and patients concerning complainant's interpersonal skills. S1 stated that complainant did not always work as a team with her co-workers.
With respect to complainant's argument that S1 gave her a "satisfactory" rating because she had complained to an EEO Counselor about S1 during the relevant rating period, S1 stated "no, that had nothing to do with it." Furthermore, S1 stated that she did not discriminate against complainant based on her prior protected activity.
On appeal, complainant argues that the AJ erred in finding no discrimination. Complainant states for example, that the AJ noted that two witnesses who rated complainant's interpersonal skills quite favorably were complainant's friends. Complainant asserts, however, that this assessment was "[N]ot true. They have a working relationship and nothing more. And both rated her performance above 'satisfactory' during the rating cycle." Complainant argues that according to the VA Handbook, she should have received an "outstanding" rating during the relevant period.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
The Commission determines that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the AJ's finding of no discrimination. Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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
September 21, 2009
__________________
Date
2
0120092177
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092177
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