0120090586
05-20-2011
Linda Chwaliszewski, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Linda Chwaliszewski,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090586
Hearing No. 450-2008-00176X
Agency No. 2003-0549-2007102630
DECISION
Complainant filed an appeal from the Agency’s final order dated October
15, 2008, finding no discrimination with regard to her complaint.
29 C.F.R. § 1614.405(a). For the following reasons, we AFFIRM the
Agency’s final order.
BACKGROUND
In her complaint, dated August 27, 2007, Complainant, a former GS-6
Surgical Technician at the Agency’s Dallas Medical Center, alleged
discrimination based on disability (migraine headaches, chemical
sensitivity) when she was terminated during her probationary period on
May 13, 2007. Upon completion of the investigation of the complaint,
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On September 25, 2008, the AJ issued a decision without holding a hearing,
finding no discrimination. The Agency’s final order implemented the
AJ’s decision.
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. 29 C.F.R. § 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth 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). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. An issue of fact is “genuine” if the evidence is such
that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material”
if it has the potential to affect the outcome of the case.
Despite Complainant’s contentions, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. The record clearly indicates that the AJ issued a Scheduling
Notice and Order to both parties on April 23, 2008, notifying them of
the Pre-Hearing Conference scheduled to be held on August 18, 2008,
at 9 a.m. and the hearing to be held on August 27, 2008. Complainant
does not dispute this. The AJ, undisputed by Complainant, stated that
Complainant failed to attend the Pre-Hearing Conference on August 18,
2008, and when she phoned Complainant on that day, Complainant stated she
was too busy, Complainant was argumentative with the AJ, and Complainant
terminated the call with the AJ. Complainant indicates that she did
not expect the AJ to call her when she was working. On August 19,
2008, the AJ issued a Memorandum of Pre-Hearing Conference notifying
the parties again that the hearing would be held on August 27, 2008,
at 9 a.m. The AJ indicated that on August 26, 2008, Complainant’s
purported non-legal representative, without submitting a designation
of representation, faxed a motion requesting to reschedule the hearing
which was not received until August 27, 2008, i.e., the hearing day.
Therein, the purported representative also stated that on August 18,
2008, when the AJ telephoned Complainant, Complainant thought it was
from her nursing instructor and she was engaged in patient care. The AJ
stated that since she did not receive Complainant’s motion until the
morning of August 27, 2008, she had no time to respond to this request
prior to the hearing. Complainant did not appear for the hearing.
Based on Complainant’s failure to comply with the foregoing orders,
the AJ stated the appropriate sanction was to render a ruling in favor
of the Agency. The AJ further stated that even if the case were to go
to hearing, there was no discrimination on the part of the Agency as
Complainant alleged. Based on the foregoing, we find that the AJ’s
issuance of summary judgment was appropriate.
In this case, the AJ determined that, assuming arguendo that Complainant
had established a prima facie case of discrimination, the Agency
articulated legitimate, nondiscriminatory reasons for the alleged
termination. The AJ stated that Complainant was hired by the Agency
on March 4, 2007, as a Surgical Technician. The AJ indicated that the
Agency decided to terminate Complainant on May 13, 2007, because she
did not demonstrate that she had knowledge and abilities as a Surgical
Technician. Specifically, the Agency stated that Complainant, among other
deficiencies, was unable to load a suture onto a needle driver and she
damaged a piece of surgical equipment. Complainant does not dispute
the fact that she lacked the skills of which her position required.
The AJ stated that there was no evidence of any other similarly situated
individuals with a work record similar to Complainant who were not
similarly terminated during their probationary period.
Upon review, the Commission agrees with the AJ that Complainant failed
to rebut the Agency’s legitimate, nondiscriminatory reasons for
terminating her. We note that in this decision, we do not determine
whether Complainant was disabled. Furthermore, we note that Complainant
has not claimed that she requested or was denied any kind of accommodation
for her alleged conditions. There is no indication that she was required
to work beyond her medical restrictions. Based on the foregoing, we
find that Complainant has failed to show that the Agency’s action was
motivated by discrimination as she alleged.
CONCLUSION
Accordingly, the Agency’s final order finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
5/20/11
__________________
Date
2
0120090586
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090586