0120080325
09-25-2009
Joann M. Bisto, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joann M. Bisto,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080325
Agency No. 2003-0657-2005103761
Hearing No. 560-2006-00172X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 25, 2007, final order concerning
her equal employment opportunity (EEO) 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. Complainant alleged
that the agency discriminated against her on the basis of sex (female)
when, on September 1, 2005, she found out that her supervisor approved
three male Pharmacists to work a straight shift, but she was denied the
same opportunity and was assigned a rotating shift.
The record reveals that complainant at all relevant times was employed as
a Clinic Support Pharmacist, GS-12, at the VA Medical Center, which is
a two-division facility with one unit located in East Central Missouri
and the other in Southwestern Illinois. Complainant was hired to work
a ten-hour tour of duty and was assigned to rotate five different tours:
7:00 am to 3:30 pm; 8:00 am to 4:30 pm; 9:30 am to 6:00 pm; 11:30 am to
8:00 pm; and 1:30 pm to 10:00 pm. At some point, the 11:30 am to 8:00
pm shift was eliminated. Complainant was also expected to fill in for
the evening and night pharmacists when they were on annual leave.
The record reflects that all of the Clinic Support Pharmacist positions
were required to work rotational shift assignments and that in order to
change shift assignments and/or tour of duty, a pharmacist had to apply
for a particular pharmacy position through a vacancy announcement.
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Over complainant's objections,
the AJ, sua sponte, issued a decision without a hearing. The AJ found
that complainant failed to demonstrate that she had been subjected to
discrimination. Specifically, the AJ determined that complainant failed
to establish a prima facie case of sex discrimination because she failed
to identify anyone in her position classification who was treated more
favorably. Notwithstanding, the AJ found that even assuming, arguendo,
that complainant established a prima facie case of sex discrimination,
the agency had articulated legitimate nondiscriminatory reasons for its
actions; namely, that complainant was denied a transfer to a permanent
"straight shift" because she never applied for any announced vacancies
that had a specific tour of duty. The agency had explained that, in order
to be reassigned to a different tour of duty, complainant was required
to apply for a vacancy that had a specific tour of duty. Furthermore,
complainant's request for a 12-hour compressed schedule was denied because
management eliminated that tour of duty because of the new regulations
for dispensing methadone in the pharmacy. The AJ found that complainant
failed to present any evidence which demonstrated that the agency's
legitimate nondiscriminatory reasons were pretext for discrimination.
On appeal, complainant contends that she has frequently requested a change
in schedule that would allow her to work fewer tours. She contends that
the constant rotation of tours is having a detrimental effect on her home
life. She maintains that the collective bargaining agreement under which
she works requires that she be given preference over two of her coworkers
when it comes to requesting tour assignments. Complainant reiterates
that she believes her requests for tour assignments have been turned
down or ignored because she is female. Complainant asserts that she was
unaware that pharmacists were asked to volunteer to work the undesirable
tours at a staff meeting. Complainant contends that whether or not
she knew about this option is a material fact at issue and therefore,
summary judgment should not have been issued. Complainant contends that
issues of credibility are also at issue.
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without
a hearing on this record. The Commission's regulations allow an AJ to
issue a decision without a hearing when s/he finds that there are no
genuine issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003). We find that
the AJ's determination to issue a decision without a hearing (summary
judgment) was appropriate, as no genuine issue of material fact exists.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
The Commission finds that even if we assume, arguendo, that complainant
established a prima facie case of sex discrimination, the agency has
articulated legitimate nondiscriminatory reasons for its actions; namely
that complainant never applied for any of the positions that had a set
schedule. Moreover, complainant admits in her affidavit dated February 7,
2007, that she did not apply for at least two of the positions because
she was negotiating through the union for a compressed ten-hour tour.
Further, complainant maintains that she did not know that two male
co-workers had volunteered to work what were considered the undesirable
shifts. She maintains that she should have been given this option and
indicates that seniority should have been the determining factor for
access to a preferred tour of duty. What complainant fails to understand
is that this is not a permanent assignment for the two male coworkers,
and they are still subject to applying for a position if they want a
specific tour. In fact, the record shows that complainant was allowed
to volunteer for an assignment, the Opioid Addiction Treatment Program
(methadone dispensation).1 We find this negates any argument that she
has regarding sex as an obstacle to volunteering for assignments.
Furthermore, with respect to complainant's argument that seniority should
have been the determining factor, the Commission notes that if complainant
had applied for one of the vacant positions, her seniority likely would
have been considered; however, because complainant never applied for a
position this argument is moot. The Commission finds that complainant
has provided no evidence which indicates that her sex was considered
with regard to the decisions to not grant her requests to work a straight
shift. Therefore, we find that complainant has not provided any evidence
which indicates that the agency's proffered reasons were pretext for
discrimination. Accordingly, we find the Administrative Judge's issuance
of a decision without a hearing was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.
The finding of no discrimination therefore is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 25, 2009
Date
1 The twelve-hour compressed day tour for the Opioid Addiction Treatment
Program was eliminated due to new regulations for dispensing methadone
in the pharmacy.
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2
0120080325
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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