Keturah F.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 22, 20160120140905 (E.E.O.C. Sep. 22, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Keturah F.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140905 Agency No. 2003-0657-2013100031 DECISION On December 10, 2013, Complainant filed an appeal from the Agency’s November 29, 2013, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it for de novo review. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Health Aide at the John Cochran Transportation Center, which is located within its Medical Center in St. Louis, Missouri. Her duties consisted mainly of transporting veterans to and from appointments and functions. On December 20, 2012, she filed an EEO complaint in which she alleged that the Supervisory Health Technician who served as her immediate supervisor (S1) discriminated against her on the bases of disability (after-effects of injuries to neck, back, and shoulder which occurred on June 26, 2012), age (55), and in reprisal for prior protected EEO activity by reassigning her to the Jefferson Barracks Transportation Center on September 20, 2012. 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. 0120140905 2 Complainant suffered an injury on June 26, 2012. Beginning the following day and continuing through October 30, 2012, she was offered a series of transitional light duty assignments, one of which was a transitional assignment at the Jefferson Barracks Transportation Center. Complainant checked the box indicating that she had accepted the assignment. She returned to the Cochran Center after four weeks and was cleared to resume her regular job without restriction on October 30, 2012. Investigative Report (IR) 94-96, 132-135, 138. Complainant did not request a reasonable accommodation. IR 95. At the conclusion of the investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), in which it concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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, at Chapter 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”). The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on her disparate treatment claim, Complainant would have to present enough evidence to raise a genuine issue of fact as to whether S1 was motivated by unlawful considerations of age, disability, and previous EEO activity when she reassigned Complainant on September 20, 2012. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as this, Complainant can prove the existence of a discriminatory motive by presenting evidence tending to show that the reason articulated by S1 for reassigning Complainant was a pretext, i.e., not the real reason but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). When asked by the investigator why she believed that S1 had reassigned her on September 20, 2012, because of her age, disability, and previous EEO activity, Complainant responded that a Health Aide in her twenties, who also worked as a driver and was injured, was allowed to remain in light duty for more than a year. IR 87. This individual had suffered a broken leg 0120140905 3 and had requested a reasonable accommodation, while Complainant did not. IR 87. When asked why she felt that her disability was a factor in being reassigned from Cochran to Jefferson, she admitted that she could not do the job that was required of her. IR 87. S1 simply reassigned her to a location where light duty work was available. She returned to Cochran after being cleared to resume her regular job duties by her doctor. IR 96. Finally, when asked why she believed that S1 had retaliated against her, she replied that it was because she had written a letter to the First Lady of the United States complaining about the conditions at the facility. Beyond the assertions made in her affidavit, however, Complainant has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by S1 or which call S1’s veracity into question. We therefore agree with the Agency that Complainant failed to prove the existence of an unlawful motivation on the part of S1 with respect to Complainant’s reassignment on September 20, 2012. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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), 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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. 0120140905 4 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 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 September 22, 2016 Date Copy with citationCopy as parenthetical citation