0520120090
04-10-2012
Dana A. Cunningham, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Dana A. Cunningham,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05-2012-0090
Appeal No. 0120093631
Hearing No. 510-2008-00019X
Agency No. 200I06732006103455
DENIAL
Complainant timely requested reconsideration of the decision in Dana A. Cunningham v. Department of Veterans Affairs, EEOC Appeal No. 0120093631 (September 28, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed an EEO complaint alleging that the Agency subjected her to hostile work environment harassment on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII when:
1) Throughout April 2006, the Nurse Manager (NM - Hispanic) instructed the staff to place Complainant's name on a board with the times she left for and returned from breaks and lunch;
2) Throughout April 2006, NM repeatedly called Complainant to her office and asked, "Why do you people want to work on this floor?"
3) On April 21, 2006, NM assigned Complainant to the day shift and notified her that her tour of duty would change to 7:30 a.m. to 4:00 p.m., with weekends off, effective April 24, 2006;
4) In April 2006, the Agency assigned Complainant only Nursing Assistant (NA) duties even though she was an HT;
5) On August 8. 2006, the Associate Chief of Staff (ACS - Caucasian) issued Complainant a proposed three-day suspension;
6) From December 10-12, 2006, Complainant served a three-day suspension;
7) On December 13, 2006, a Charge Nurse (CNl) staled, "I can't believe she [Complainant] had the nerve to return her to work," asked her how to spell the word "liar" and, upon hearing her response, patted her on the shoulder four times and stated, "Very good! See!"
8) On January 11 and April 10, 2007, NM told Complainant that she would be monitored on the phone because nurses had complained that she was not answering the phones properly or alerting nurses when they had phone calls;
9) On February 9, 2007, after a Charge Nurse (CN2) asked Complainant for help in cleaning and moving stretchers, lifts, and wheelchairs, Complainant informed CN2 that she was on light duty and CN2 replied, "They're just wheelchairs;"
10) On February 12, 2007, after Complainant refused to assist NM with making computer entries of vital signs and finger stick data taken by NAs, stating that it was improper, NM replied, "That's ok. I just thought we could help each other;"
11) On February 12, 2007 and "almost every day" thereafter, NM constantly stood near Complainant's desk, took notes about everything she was doing, used her phone, and questioned another employee about her whereabouts whenever she was away from her desk;
12) On February 20. 2007, NM tried to intimidate Complainant by standing in front of her desk and stating, "I've got a gang of friends who are nurses and they'll be transferring in from New York lo this floor;"
13) On March 7 and April 13, 2007, NM stood in front of Complainant's desk and stated, "Oh, my back hurts," after which NM and the staff laughed out loud;
14) On March 16, March 20, and May 7, 2007, her co-workers harassed Complainant by constantly asking her to lift or push heavy objects even though she was on light duty; and
15) On May 2, 2007, NM, while discussing staffing requirements with another employee, looked at Complainant and then stated to the employee, "It's ok, as long as you don't mistreat me," after which both laughed.
The agency conducted an investigation, and then complainant requested a hearing before an EEOC Administrative Judge. The AJ held a hearing, and then issued a decision finding no discrimination. The prior decision affirmed, finding that there was substantial evidence in the record to support the AJ's hearing, which was based on credibility determinations.
In her Request, complainant asserts that the AJ failed to credit the testimony of witnesses who support her claim that she was subjected to harassment based on her race. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. Complainant failed to present evidence that would establish the prior decision involved a clearly erroneous interpretation of material law or fact. The decision in EEOC Appeal No. 0120093631 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
4/10/2012
Date
2
05-2012-0090
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
05-2012-0090