01a03211
08-22-2000
Glenna Wilburn, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Glenna Wilburn v. Department of Veterans Affairs
01A03211
August 22, 2000
.
Glenna Wilburn,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A03211
Agency No. 98-4467
Hearing No. 220-99-5291X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et
seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). Complainant alleges
she was discriminated against on the bases of sex (female), and age
(DOB March 25, 1944) when (1) on July 30, 1998, she was harassed by her
supervisor for using water instead of saline on a patient's dressing;
(2) on August 9, 1998, she was issued a reprimand after she distributed
the wrong medication;<2> (3) in October 1998, she was accused of providing
the wrong medication to a patient in September 1998; (4) she was denied a
different work schedule in October 1998; and (5) she was issued a Notice
of Discharge on October 30, 1998, and discharged in November 1998.
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
The record reveals that complainant, a licensed practical nurse,
was a probationary Nurse's Aide at the agency's Chillicothe, Ohio
Medical Center. She filed a formal EEO complaint with the agency,
alleging discrimination as referenced above. At the conclusion of the
investigation, complainant received a copy of the investigative report
and requested a hearing before an EEOC Administrative Judge (AJ). The AJ
determined that there were no genuine issues of material fact in dispute
and issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of sex and age discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated male co-workers
who were less than forty years of age were treated more favorable than
she under similar circumstances. The AJ noted that the male co-workers
cited by complainant were not probationary employees.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. A co-worker corroborated
that complainant was about to use tap water instead of saline to clean
a dressing and that the supervisor's correction of her action was not
harassing or discriminatory. Complainant admitted that in October 1998,
she did not follow procedure before giving a patient the wrong medication.
Complainant also admitted that she had been granted previous schedule
changes. An agency official averred that complainant was not granted the
October 1998 request because the agency planned to discharge her for her
various mistakes and lack of attention to detail. The AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The agency's final order implemented the AJ's decision. On appeal,
complainant argues that the AJ erred in not holding a hearing, but makes
no new contentions.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
After a careful review of the record, we find the AJ properly determined
that there was no genuine issue of material fact in this case.
Specifically, we find that complainant failed to set forth sufficient
facts showing that there was a genuine issue still in dispute. Moreover,
complainant failed to provide in this appeal any evidence or argument
that material issues are in dispute. Therefore, we concur in the AJ's
determination and find that summary judgment was appropriate in this
case.
Based on our careful de novo review of the entire record before us, the
Commission finds that the AJ's Decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We conclude that complainant failed to establish by preponderant evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's sex or age. Accordingly, we discern no basis to
disturb the AJ's Decision or the agency's adoption of the AJ's Decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final order.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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:
____________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 22, 2000
_________________
DATE
_________________
DATE
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant later averred that she gave the wrong medication and withdrew
this claim.