0120090687
11-10-2009
Cristal E. Serwanga, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cristal E. Serwanga,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090687
Agency No. 200L06232008101176
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 30, 2008 final decision concerning
her equal employment opportunity (EEO) complaint alleging 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant alleged that the agency discriminated against
her on the bases of religion (Christian) and age (43) when:
1. she was not compensated for overtime work in June, July, September,
August and November 2007;
2. an unspecified discriminatory event occurred in December 2007;
3. she was sent to feed a patient that had already been fed;
4. an agency official insisted that complainant report to the Chief
Nurse in reference to her leave request;
5. she was required to work on wards 4W, 5W, 5E, and the Emergency Room
during one shift;
6. she was berated by an agency official in front of other employees;
7. she was not compensated for overtime work in December 2007;
8. her requests for leave in December 2007 were denied and she was
charged leave without pay (LWOP) on December 10, 2007.
9. her duty hours were changed; and
10. she was terminated during her probationary period.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of the right to request a
hearing before an EEOC Administrative Judge (AJ.) Complainant requested
a final agency decision. The agency issued a final decision pursuant
to29 C.F.R. � 1614.110(b) concluding that complainant failed to prove
that she was subjected to discrimination as alleged.
In its final decision the agency concluded that complainant failed to
establish her claims. As to harassment, the agency determined that
complainant failed to show that the alleged incidents were so severe and
pervasive that they altered the conditions employment or that they were
related to complainant's age or religion.
As an initial matter, the agency dismissed claims 1 and 2 as untimely
and for failure to state a claim. Specifically, the agency found that
complainant's EEO counselor contact on December 27, 2007 was beyond
the 45 day time limitation for counselor contact regarding for events
which occurred in June, July, September, October and November of 2007.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented by
circumstances beyond her control from contacting the Counselor within the
time limits, or for other reasons considered sufficient by the agency or
the Commission. On appeal, complainant has failed to present persuasive
evidence that the time for EEO counselor contact should be extended for
any reason. We find therefore, that the agency's dismissal of claim 1
as untimely was proper.
The agency dismissed claim 2, regarding an unspecified discriminatory
event occurring in December 2007 for failure to state a claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides,
in relevant part, that an agency shall dismiss a complaint that
fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Upon review,
the Commission finds that with respect to claim2, complainant has failed
to demonstrate that she was subjected to an adverse action with respect
to the terms and conditions of her employment. In that regard, we find
that the agency's dismissal of claim 2 was proper.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Turning now to claims 3 through 10, the agency found that complainant
failed to establish a prima facie case of discrimination as alleged.
In its final decision, the agency determined that complainant failed
to demonstrate that similarly situated individuals were treated
more favorably in similar circumstances. Even assuming arguendo
that complainant established a prima facie case of discrimination
the Commission determines that the agency articulated legitimate,
nondiscriminatory reasons for its conduct. Specifically, the agency
indicates that due to needs of the facility in which complainant worked,
she was required on occasion to perform work in several hospital wards
due to staff shortages in a particular area. The agency indicates
that because of staff shortages during complainant's duty hours, she
was required to perform various duties in several hospital wards on
one day. The agency also indicated that according to payroll records,
complainant has been compensated for all overtime worked in December 2007.
In reaching this conclusion, the agency has provided the Commission
with copies of documentary evidence in support of its finding.
The agency also indicated in its final decision that complainant's
leave request was denied in December because she had a negative sick
leave balance and had used all of her annual leave. Consequently, her
request for leave in December 2007 was denied. Similarly, complainant
was charged AWOL for failing to report to work on December 10, 2007.
Regarding complainant's claim that her duty hours were changed, the
agency indicates that complainant had previously agreed to a temporary,
one week change in her duty hours in order to accommodate staffing
shortages during the holiday season when several employees were on
annual leave. In support of its finding in that regard, the agency has
provided the Commission with a memorandum to complainant documenting the
temporary change in duty hours. Regarding complainant's termination,
the agency indicates that complainant was removed from her position for
negligence and carelessness in performing her duties. Specifically,
the agency indicated that on one occasion, complainant was found sleeping
in a patient's recliner during duty hours and on other occasions failed
to provide water to patients during the night, failed to take vital
signs and finger stick blood sugars in a timely manner. In addition,
the agency indicated that in one incident, complainant failed to feed a
patient at all. Concerning complainant's additional claims that she was
sent to feed a patient that had already been feed, that she was required
to report to the Chief Nurse regarding her request for leave, and that she
was berated by a supervisor, the Commission finds that complainant has
failed to demonstrate that she suffered any adverse actions concerning
the terms and conditions of her employment or that she was subjected to
discriminatory harassment as a result of the agency's conduct.
Because the agency articulated legitimate, nondiscriminatory reason
for its actions, complainant is required to show that the reasons are a
pretext for discrimination. Complainant has failed to present arguments
or evidence of pretext on appeal in this matter. The Commission finds
therefore, that complainant has not established that the agency's
articulated reasons for its actions were pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
November 10, 2009
__________________
Date
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0120090687
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120090687