01972134
03-17-1999
Francis Kelly, Appellant, v. Togo D. West, Secretary, Department of Veteran's Affairs, Agency.
Francis Kelly v. Department of Veteran's Affairs
01972134
March 17, 1999
Francis Kelly, )
Appellant, )
) Appeal No. 01972134
v. ) Agency No. 95-0831
) EEOC No. 340-95-3747X
Togo D. West, )
Secretary, )
Department of Veteran's Affairs, )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts
this appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal complaint of discrimination in which he claimed
discrimination on the basis of religion (Roman Catholic) when, in
October 1994, the on-call schedule for the Chaplain Service was changed
from separate lists for each major denomination to one primary list.
The agency accepted the complaint and conducted an investigation.
At the conclusion of the investigation, appellant requested a hearing
before an Equal Employment Opportunity Commission administrative judge
(AJ). A hearing was conducted on June 18, 1996.
On October 25, 1996, the AJ issued a recommended decision (RD) finding
no discrimination. Appellant is a Roman Catholic Chaplain and works at
the Veterans Administration Medical Center (VAMC) in West Los Angeles.
The AJ found that in August 1994, a new Chief of Chaplain Services for the
VAMC was appointed and instituted a new scheduling policy. Prior to her
arrival, the practice was to have separate on-call emergency schedules
for each denomination. If a patient requested services during off-duty
hours, the Administrative Officer on duty called the on-call Chaplain
of the same faith as the patient. The Chaplain then determined whether
or not to see the patient. The AJ found that under the old procedure,
two or three Chaplains were required to be on-call each day.
Under the new consolidated procedure, the Chaplains were all rotated on
one schedule, which necessitated only one on-call Chaplain per night.
The role of the Chaplain now entailed determining whether he needed to
visit the patient, and then he determined if the patient needed to be
seen by a Chaplain of another faith. If so, the on-call Chaplain called
the other Chaplain, who would then visit the patient.
The AJ found that the hospital population was made up of approximately
25% Catholics, which also reflects the usual breakdown of the West Los
Angeles area and also nationwide. The AJ also found that at the time of
the scheduling methodology change there were 9 chaplains: 6 Protestant,
2 Catholic, and 1 Jewish.
Appellant alleged that on October 15 and 16, 1994, Catholic patients
needed to be seen, but the on-call Chaplain was not Catholic. Although
appellant was eventually contacted, and able to see the patients and
administer the Sacrament of the Sick before they died, he argued that
there was an unnecessary delay when the facility called the non-Catholic
Chaplain.
The AJ found that appellant's claim constituted a claim of disparate
impact in that the new on-call policy was instituted for all Chaplains.
Appellant alleged, that as one of the only two Catholic Chaplains, he
was adversely impacted by the new policy since he could theoretically
be called in for a non-Catholic patient. He would also have to make
himself available for calls relating to Catholic patients. He argued
that this was more of a burden on him since there were more Protestant
Chaplains than Catholic Chaplains.
The AJ found that appellant failed to establish a prima facie case of
disparate impact discrimination in that the numbers of additional hours
worked by appellant would be de minimus, and therefore insufficient
to support an inference of discrimination. Specifically, appellant
testified that he was only called out to see patients two times a month.
Furthermore, the AJ found that any inequity was caused by the patient's
religion andthe agency was not liable for any disparity.
On December 11, 1996, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
The Commission has reviewed the parties' statements on appeal and discerns
no basis in which to disturb the AJ's finding of no discrimination.
Although appellant argues that the policy has a disparate impact on
the Catholic Chaplains, he has failed to present sufficient statistical
evidence which establishes an inference of discrimination. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency'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 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. �1614.604(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. 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 (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:
March 17, 1999
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations