0120092901
11-25-2009
Nadine Henderson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Nadine Henderson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092901
Hearing No. 450200900087X
Agency No. 200305492008101679
DECISION
On June 26, 2009, complainant filed an appeal from the agency's June 23, 2009 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. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant worked as a Staff Nurse in the Spinal Cord Injury Unit of the agency's Medical Center in Dallas, Texas. Complainant was accustomed to working a ten hour shift for four nights in a row with Tuesday-Thursday off. Complainant is an African American, Jehovah's Witness and testified to attending church on Wednesday nights, Saturdays and Sundays. In December 2007, a new supervisor (S1) became the Acting Manager of the Spinal Cord Injury Unit, and working with the union, S1 began to make immediate changes to the nursing schedule due to a staffing shortage. However, before S1 arrived, the staff had notice that changes would be required due to the recent departure of several nurses. Although management wanted to have only twelve and eight hour shifts, complainant was allowed to continue working her ten hour shifts, but her days off were changed from fixed to rotating. As a result of the rotating days off, complainant testified that she "lost sleep" but could not recall whether she ever told S1 that she needed certain days off for religious reasons. S1 testified that complainant never told him that her schedule change prevented her from attending church, only that the change made her "too tired." He also stated that he received an email from complainant in February 2008, stating that she needed to have Wednesday nights off for religious reasons, which he granted.
In March 2008, complainant received a proposed suspension for the following infractions: delay in patient care; administration of the wrong medication; failing to complete an assignment that endangered the safety of patients; and failing to complete an assignment requiring the administration of medication. In response, complainant denied the first two charges and explained that others knew when and why she was unable to complete assignments. S1 disputed complainant's responses; S1's supervisor, the Chief Nurse, reviewed the supporting documentation of the charges including substantiating reports from other nurses and recommended suspension; and in May 2008, the Director of the Medical Center made the determination to suspend complainant from June 8-14, 2008.
Complainant filed an EEO complaint alleging that she was discriminated against on the bases of race and religion when her schedule was changed and that she was retaliated against when she was issued a proposed seven day suspension. In her formal complaint, complainant stated that nurses of other races were allowed to have schedules that were more "suitable and stable" for their lifestyles and families. She also alleged that her coworkers were given schedules that accommodated their religious obligations. Complainant does not allege, however, that she was prevented from attending church because she was scheduled to work at the same time.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing on October 28, 2008 and issued a decision on May 21, 2009.
In her decision, the AJ first found that the agency had articulated legitimate and non- discriminatory reasons for its actions. Specifically, changes were made to the schedules of many nurses due to lack of adequate staffing in the Spinal Cord Injury Unit, and complainant was not the only individual affected. The changes were cleared with the union. With regard to the disciplinary action, the AJ found that S1 brought the charges to the attention of the Chief Nurse after he received reports from other nurses who worked with complainant in the unit. The AJ concluded that the agency's explanation was sufficiently clear and specific to afford complainant the opportunity to prove pretext.
The AJ then held that the issue of religious accommodation was not before her. Rather, the claim was that complainant's schedule was changed because of her race and religion, and there was insufficient evidence to support the allegation. With regard to her reprisal claim, the AJ found that S1 was unaware of complainant's prior protected activity when he brought the charges to the Chief Nurse's attention and that the Chief Nurse was unaware of complainant's prior protected activity when she proposed the suspension. The AJ thus concluded that the proposed suspension was not motivated by retaliatory animus. The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit a statement in support of her appeal. The agency did submit a statement, noting that complainant had not identified any basis for overturning the AJ's decision and requesting that we affirm its final order.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
First, we concur with the AJ's conclusion that this is not religious accommodation case. Upon careful review of complainant's testimony, we agree that the allegation is not that complainant was denied religious accommodation but that others were given schedules that, inter alia, accommodated their religions more favorably than hers did. The record lacks evidence that complainant was unable to participate in her religious obligations because of her schedule or that she intended to allege such.
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
We concur with the AJ that the evidence does not support complainant's claim that management was motivated by discriminatory animus when it changed complainant's schedule to accommodate the needs of the unit. Our review of the record establishes that the AJ's findings of fact are supported by substantial evidence, and on appeal, complainant presents no argument to challenge the AJ's credibility determinations.
It is undisputed that there was a need to change schedules to address the staffing shortage. Complainant herself admits that as a night shift nurse, her schedule was less impacted by the changes than those of the day shift nurses. Moreover, although complainant insists that she believes other nurses received more favorable schedules, she does not offer any persuasive evidence that they did. While it is true that the schedule changes impacted affected individuals differently, the record suggests that the affected staff was disgruntled because they all had to make adjustments to that which they had become accustomed. There is no evidence that complainant was singled out for less favorable treatment than her coworkers. The record also supports the conclusion that S1 treated complainant quite favorably when he granted many of her schedule requests after her off days were changed from fixed to rotating.
Finally, we agree with the AJ that neither S1 or the Chief Nurse knew of complainant's EEO activity when they played their respective roles in the initiating disciplinary action against complainant, nor is there any evidence to support the conclusion that the ultimate decision to suspend complainant, as it moved up through the chain of command, was motivated by retaliatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we discern no basis to disturb the AJ's decision, and we AFFIRM the agency's final order.
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
November 25, 2009
__________________
Date
2
0120092901
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013