Ivelisse S.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120140119 (E.E.O.C. Jan. 29, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ivelisse S.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120140119

Agency No. 200H-0528-2012103624

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated August 30,
2013, finding no discrimination concerning her 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.
For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

In her complaint, filed on October 2, 2012, Complainant, a Nurse Practitioner at the Agency’s
Western New York Health Care System in Buffalo, New York, alleged discrimination based
on sex (female) and age (over 40) when on July 1, 2012, her tour of duty was changed from
midnight - 8:00 am to 1:30 pm - 10:00 pm. After completion of the investigation of the
complaint, Complainant requested a final Agency decision. The Agency thus issued its final
Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action,
which Complainant failed to rebut.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is
published to non-parties and the Commission’s website.
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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de
novo standard of review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker," and that EEOC "review
the documents, statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incident. Complainant’s second level supervisor indicated that he
decided to change Complainant’s tour schedule due to the needs of the department and due to
changes in patient care needs, i.e., the loss of medical coverage for Veterans admitted to the
Behavioral Health Service. The supervisor further stated that a medical provider was needed
to work with the interdisciplinary team during administrative hours. The supervisor indicated
that when he gave Complainant an option to take the afternoon tour at issue (1:30 pm – 10 pm)
or the day tour (8 am – 4:30 pm), she agreed to work on the afternoon tour schedule at issue.
Complainant indicated that working on the day tour would cause loss of her income and
working on the afternoon tour at issue would adversely affect her life style because of personal
and family medical concerns.

Upon review, we find that Complainant failed to show that the Agency’s articulated reasons
were a pretext for discrimination. We further find that Complainant failed to show that she
was treated less favorably than a similarly situated employee under similar circumstances.
Based on the foregoing, we find that Complainant failed to show that the Agency’s action was
motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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:

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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), at Chap. 9 § VII.B (Aug. 5, 2015). 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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 29, 2016
Date