01A44072_r
11-29-2004
Hillary Hoban, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Hillary Hoban v. Department of Veterans Affairs
01A44072
November 29, 2004
.
Hillary Hoban,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44072
Agency Nos. 200K-0676-2003102342 and 200K-0676-2003103598
DECISION
Complainant initiated an appeal from a final decision concerning her
complaint of unlawful employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Staff Nurse at the agency's Veterans Affairs Medical Center in
Tomah, Wisconsin. Complainant sought EEO counseling and subsequently
filed formal complaints dated May 19, 2003 and August 16, 2003, alleging
that she was discriminated against on the bases of disability (alcoholism
and trigeminal neuralgia) and in reprisal for prior EEO activity when:
200K-0676-2003102342
On January 2, 2003, a co-worker (C1) was verbally sarcastic and abusive
when she informed complainant that she was not a �team player� and that
she and M1 did not enjoy working with complainant;
On January 6, 2003, the acting nurse manager (C2) denied complainant's
request to meet regarding C1's sarcasm and abuse;
On March 22, 2003, C1 followed complainant into the �med room� and asked
complainant �what business [she] had in there.� C1 also told complainant
that complainant was gone too long when she went to the toilet and to
the coffee room and C1 questioned complainant about her habit of going
to her vehicle with her backpack to get some air and when she is tired.
On March 23, 2003, C1 insinuated that complainant had a drug problem
in front of another co-worker.
On March 25, 2003, C1 and M1 reported that complainant had taken a
patient's narcotic medication.
On March 26, 2003, M2 placed complainant on administrative leave pending
a Board of Investigation.
On March 27, 2003, complainant was reassigned to administrative duties
pending the outcome of the Board of Investigation.
On May 22, 2003, M2 assigned complainant to work on Ward 403-A.
200K-0676-2003103598
2.
On May 2, 2003, M3 did not reassign complainant to a nursing position
on Ward 408-B.
On June 2, 2003, complainant was not selected for a Nurse Manager position
on Ward 408-A under vacancy announcement WN-02-03-22-TM.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its decision, the agency concluded that complainant failed to
show that discrimination had occurred. The agency determined that
complainant established that she was a qualified person with a disability
(alcoholism). Regarding agency case number 200K-0676-2003102342, the
agency found that complainant failed to show that she was subjected to a
hostile work environment or that any of the incidents were motivated by
discrimination. Additionally, regarding claims 1(F) and 1(G) the agency
found that complainant failed to show that she was treated differently
than any other similarly situated person. Regarding claim 1(H), the
agency found that the agency offered complainant a transfer to Ward 403-A
after she was exonerated by the Administrative Board of Investigation.
The agency stated that although complainant preferred to be assigned to
Ward 403-B, she was reassigned to Ward 403-A because a person with more
seniority was assigned to Ward 403-B . The agency found that there
was an opening in Ward 403-A, complainant was offered that opening,
and complainant thankfully accepted that offer.
Regarding agency case number 200K-0676-2003103598, the agency found that
management's decision not to transfer complainant pending the outcome
of the Board of Investigation, and its determination that complainant
was not among the highest scoring applicants for the position of Nurse
Manager, were both supported by ample evidence in the record, including
the testimony of responsible agency witnesses to each action.
On appeal, complainant contends that many people had access to the room
in which patients' medications are stored, but she was the only person
accused of taking the patient's medication because she is a recovered
alcoholic and open with her co-workers and supervisors about her history
with alcohol and her sobriety of many years.
ANALYSIS
The Commission finds that complainant has failed to show that any of
the alleged incidents in the complaint were motivated by disability
discrimination or in retaliation for prior protected activity.<1>
Regarding claims 1(F), 1(G), and 1(H), we find that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. Moreover,
the agency's finding regarding the absence of a specific policy regarding
the promotion or transfer of employees who were under active internal
investigation, is unrebutted in the record, and in fact, as alleged in
claim 1(H), the agency offered complainant a transfer to Ward 403-A,
which she accepted. We therefore find that complainant has not shown
the agency's decision not to transfer her to Ward 408-B was discriminatory
(claim 2(A)).
In a non-selection case, pretext may be demonstrated by a showing that
complainant's qualifications are observably superior to those of the
selectee. Williams v. Department of Education, EEOC Request No. 05970561
(August 6, 1998). Having considered the evidence of record, we find that
complainant failed to establish that the agency's proffered reasons for
her non-selection for the position of Nurse Manager were a pretext for
discrimination. Specifically, we note that complainant has not offered
any evidence that her qualifications for the position were "observably
superior" to those of the selectee. Though complainant contends that
she was the most qualified candidate for the position due to her job
experience and education, we find that complainant has not presented any
persuasive evidence that the agency would have otherwise selected her
for promotion to the position of Nurse Manager, but for discrimination.
Rather, the Commission notes that complainant was rated fourth, out of
a field of seven candidates for the position at the conclusion of the
agency's interviews.
Significantly, we note that complainant herself states that she has
no evidence regarding any bias on behalf of the selecting official
against individuals with disabilities, other than the fact that she
was not selected for the position of Nurse Manager. Accordingly, we
find complainant has not demonstrated that discrimination occurred with
respect to claim 2(B).
Therefore, after a careful review of the record we AFFIRM the agency's
final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
November 29, 2004
__________________
Date
1Because of our disposition, we do not address
whether complainant is a qualified individual with a disability.