0120065140
02-05-2007
Luis C. Avellanet, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Luis C. Avellanet,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200651401
Agency No. 200I-0672-2004103767
Hearing No. 150-2005-00474X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint claiming
unlawful 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405(a).
During the relevant time complainant was employed as a Staff Nurse at
the agency's Mayaguez Outpatient Clinic in Mayaguez, Puerto Rico.
On August 3, 2004, complainant contacted an EEO Counselor and filed
a formal EEO complaint on October 2, 2004, claiming that he was
discriminated against on the bases of sex (male) and disability (multiple
sclerosis) when:
(a) on April 8, 2004, he was treated disparately when he was removed
from direct patient care due to charges of patient abuse; and
(b) on July 6, 2004, he was not selected for the position of Staff
Nurse-Team Leader at the Mayaguez Outpatient Clinic, under Vacancy
Announcement No. T-38-04-35.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
In her decision, the AJ found that complainant established a prima facie
case of sex and disability discrimination. The AJ found, however,
that the agency articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to show were a pretext for
discrimination.2
The record contains the following testimony and documentation regarding
complainant's claims.
Regarding claim (a), the record reflects that complainant's second-line
supervisor (S2) stated that an unidentified Clinician gave her a Report
of Complaint (ROC) filed by a patient that was seen by complainant.
Specifically, S2 stated that the patient complained about not being
seen by a physician at which time he complained of a three-day history
of rectal bleeding; and that he was submitted to a rectal examination
by complainant. S2 stated that she had concerns with the ROC because
"the patient came seeking for assistance because he had a rectal bleeding
and he had a rectal exam performed by somebody that was not authorized
to do it." S2 stated that because it was the first time she encountered
this type of situation, she contacted her supervisor, the Director for
Nursing Service (Director), for advice "to see what is the procedure
in these cases and she told me that according to the policies and past
practice, what is done is that you recommend...[The Director] told me
'Gather all the papers. You have to request a Board of Investigation
through me to the Center Director and then the employee has to be
detailed while the Board of Investigation is being conducted' and that's
how I did." S2 stated that following such patient complaints, a BOI is
mandatory and is "not discretionary because you have to investigate all
the sides." S2 stated that the ROC was then forwarded to complainant's
first-line Supervisor (S1) so she could interview the parties involved
in the complaint.
S2 stated that during the relevant time, she removed complainant
from Patient Care pending the outcome of the Board of Investigation
(BOI) convened to investigate the patient's complaint of patient
abuse raised against him. S2 stated "it is part of the procedure
to remove the employee from direct patient care until the Board of
Investigation is conducted and depending on the response from the Board
of Investigation, then a decision is [made] . . . for example, if the
Board of Investigation concludes that there is no case of patient abuse,
the employee returns to his previous duties and if not, then employer
actions are taken. S2 stated that complainant had to be reassigned
to show the patient that the system was taking action concerning the
patient's charges, as well as to protect complainant from further claims.
S2 stated that the BOI cleared complainant of patient abuse, and that
complainant has been returned to his previous duties. S2 stated that
complainant's temporary detail to administrative duties did not entail any
loss in grade or pay and that no adverse action was taken against him.
The Director stated that S2 sought "advice as to what to do with a
complaint on an alleged patient abuse and she brought several documents
with her." The Director stated that one report was from the identified
patient, another report from S2, and a third report from a physician.
The Director stated that the patient had claimed that he wanted to see
a physician but that complainant "examined him rectally and ordered a
CBC, a complete blood count, told him to go home and that he would not
see a doctor that day." The Director stated that the patient brought
his complaint on a subsequent visit to the clinic "which was a month or
somewhere after a month later and in the complaint he stated that 'At
this time because of the negligence of this nurse I still do not know
what I have.'" The Director stated that after reviewing the reports,
she advised S2 "to gather all current information, to send me a memo
requesting a Board, we would forward this to a Medical Center Director,
which is what I did and also, to have [complainant] placed in a 'non
direct patient care' position during the convening of the Board until
the results."
Further, the Director stated a BOI was mandated because of "the
perception on the part of the patient that there had been negligence,
and because of that negligence he still did not have a diagnosis more
than a month later and the issue of being examined rectally, which
is not within the score of a Staff Nurse." The Director stated that
complainant's temporary detail to administrative duties did not entail a
change in his grade or pay; and that he was not treated differently when
compared to other nurses. The Director stated that the outcome of BOI
showed that the alleged patient was not sustained; and that complainant
returned to his duties following the outcome of the BOI. Furthermore,
the Director stated that she did not discriminate against complainant
based on his sex and disability.
Regarding claim (b), the record reflects that five candidates, including
complainant, applied for the position of Staff Nurse-Team Leader; and
were found to be qualified. The record further reflects that the Human
Resources forwarded the list of the five qualified candidates to S2, who
was the selecting official for the subject position. S2 established a
panel of three panelists, including herself, to interview the candidates.
S2 implemented the interview questions based on several aspects of
competency and previous work experience. The candidates were asked the
same set of questions; and the panel scored each candidate individually.
S2 stated that the total interview score was based on an average by
the panel. S2 stated that after she received the total interview scores
from the other two panelists, she also took into consideration the
following two factors: attendance and proficiency. Regarding attendance,
S2 stated that she stated it was important because the Team Leader needed
to be available to guide the staff. S2 stated that she did the overall
scoring of all candidates.
S2 stated that she chose the selectee for the subject position
because she was the best qualified candidate with the highest total
point average in the selection process. S2 stated that the selectee
had the following qualifications that complainant did not possess:
"dependability, reliability, creativity, commitment with the service
and patients, excellent peer and co-worker relationship, excellent
customer service." S2 stated that while the selectee had an excellent
interview, she provided answers that were "related to the competency
that were . . . wider regarding . . . what the competency meant."
S2 stated that selectee's dependability was "outstanding" due to her
leave use. Specifically, S2 stated that during the relevant time, the
selectee used 140 hours of sick and annual leave combined. S2 stated
that she gave the selectee 5 points for attendance and dependability.
S2 stated that the selectee also had "very good" proficiency. S2 stated
that because selectee received an overall total score was 4.3, she was
ranked first on the scoring list.
S2 stated that complainant did not demonstrate the same dependability as
the selectee. Specifically, S2 stated that during the relevant time,
complainant used "four hundred and twenty point twenty five hours" of
sick and annual leave combined. S2 stated that she gave complainant 3
points for attendance and dependability. S2 stated that complainant's
proficiency was about the same as the selectee's proficiency. S2 stated
that because complainant received an overall total score was 3.3, he
was ranked third "but he was tied to other people, so it was three."
Regarding complainant's assertion that S2 told him that she did not select
him for the subject position because he was not a dependable person, S2
denied making the statement. S2 stated "I told him that dependability
was one of the areas I was looking for when I was evaluating time and
attendance and you know, so if he did not obtain a high score, that
tells me something." S2 also denied telling complainant that she did
not tell him that he was not dependable because of his medical condition.
Regarding complainant's assertion that the selectee worked at the Mayaguez
Clinic less than a year while he worked there longer than that, S2 stated
"seniority is not a selecting factor and it wasn't a selecting factor
in the position." Furthermore, S2 stated that she did not discriminate
against complainant based on his sex and disability when she selected
the selectee for the subject position.
The record reflects that one of the two panelists (P1) stated that
the panel received interview questions from S2. P1 further stated that
during the interviews, the panel "conducted the interviews through the
high performance development module." Specifically, P1 stated that the
module contained core competence that the panel evaluated each candidate.
P1 stated the following core competencies were: personal customer service;
interpersonal relationships; flexibility; adaptability; organizational
stewardship; and technical skills. P1 stated that the panel interviewed
candidates individually and turned over the total interview scores
to S2.
P1 stated that selectee and complainant's scores "were very close
between them." P1 stated that the difference was one of the interview
questions concerning organizational stewardship and system thinking.3
P1 stated that the selectee received a higher score than complainant
because she "said that she is going to accomplish specific VA goals and
missions through the promotion of a strong team building with a climate
of confidence, a climate of responsibility that every employee knows
how is his role and responsibility." P1 stated that the selectee also
stated that she would assure that the Nursing Service has the same goals,
and that there is open communication between employees. P1 stated that
complainant answered stating that he would "orient patient and family
about the importance to provide quality of care and that this quality
of care needs to be done in the minimum of time."
Further, P1 stated that she was aware that before making her decision
to choose the selectee for the subject position, S2 took the candidates'
attendance and performance evaluation into consideration.
The record reflects that the second panelist (P2) stated that the panel
scored the candidates individually; and provided the total interview
scores to S2. P2 stated that the information the panel attempted to
obtain from each candidate related to experience, customer service,
core values, interpersonal skills and system thinking. P2 stated that
the only function the panel was to do was to interview and score the
candidates. P2 stated that she knew that S2 took other factors into
consideration before making her decision to select the candidate for the
subject position. P2 stated that the other factors were time attendance
and performance evaluations.
P2 stated that she felt that the selectee had a better interview than
complainant because her responses "were more accurate, more specific."
P2 stated that the selectee provided the correct answer concerning
questions about system thinking and organizational stewardship. P2 stated
that complainant's answer was "he didn't know what the concepts are."
P2 stated that the panel asked the candidates about performance measures.
P2 stated that the selectee "answered that what she can do is create,
motivate the staff, educate the staff to compliance with the performance
measures..." P2 stated that complainant "talked about evaluation,
performance measures, to see how it can be changed and the performance
measure is something that is given."
On August 28, 2006, the agency issued a final order implementing the AJ's
finding of no discrimination, which is the subject of the instant appeal.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not shown that
the agency's articulated reasons were a pretext for discrimination.
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination was proper and is AFFIRMED.
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
February 5, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.
3 The agency describes "system thinking" as the manner in which
employees can understand and explain the complexity of the VA system;
and the roles and responsibilities of each employee.
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0120065140
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065140
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