01a05268
03-28-2001
Patricia A. Niemann, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Patricia A. Niemann v. Department of Veterans Affairs
01A05268
March 28, 2001
.
Patricia A. Niemann,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05268
Agency Nos. 992203 & 993097
DECISION
Patricia A. Niemann (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of 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., 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
In her first complaint (Agency No. 992203) complainant alleged that she
was subjected to discrimination on the bases of sex (female) and age (57
at the relevant time) and retaliated against for prior EEO activity when:
(1) she was notified on March 2, 1999, that the Licensed Professional
Nurse Professional Standards Board (LPNPSB) failed to promote her to
the LPN, GS-6 position. In her second complaint (Agency No. 993097)
complainant alleged that she was subjected to discrimination on the
above-cited bases, in addition to disability (back, knee, depression,
hypothroidism) when:
on May 11, 1999, her supervisor told her to retake the LPN Skills
test in order to improve her chances for promotion to a GS-6 position,
even though complainant passed this test in 1992;
on May 11, 1999, complainant became aware that there were negative
comments on her performance appraisal, which would have an adverse
affect on her promotion possibilities; and
on June 14, 1999, she was not allowed the opportunity of being detailed
to another unit area where she could improve her GS-6 level nursing
skills.
The record reveals that during the relevant time, complainant was
employed as a Licensed Practical Nurse (LPN), GS-5 at the agency's
Sioux Falls, South Dakota Medical Center. Believing she was a victim of
discrimination, complainant sought EEO counseling and subsequently filed
formal complaints on May 21, 1999 and July 27, 1999. The complaints were
consolidated and at the conclusion of the investigation, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the required time period,
the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of sex, age or disability discrimination with respect
to any of the issues raised. In regard to her claims of sex and age
discrimination, the agency noted that complainant failed to establish
that male employees or employees younger than she were treated more
favorably than she was treated. The agency also found that complainant
failed to establish that she is an individual with a disability within
the meaning of the Rehabilitation Act.<1> The agency concluded that
complainant failed to establish that any of her major life activities
were substantially limited by her impairments. Specifically, the
agency noted that complainant testified that none of her impairments
substantially limited a major life activity and that she did not need
any accommodations to perform her job. Furthermore, complainant did not
submit any medical documentation indicating that she was substantially
limited in a major life activity.
The agency found that complainant did establish a prima facie case of
reprisal because management was aware of her prior EEO activity and the
actions in question followed this activity within a short period of time.
The agency went on, therefore, to articulate legitimate non-discriminatory
reasons for its actions. Agency employees who served on the LPNPSB
which did not promote complainant testified that she was not qualified
to be a LPN, GS-6. Specifically, the Board felt complainant did not
have sufficient ability to work without supervision, and that she did
not show consistency in needed skills such as the use of good judgment.
In regard to the other issues, complainant's supervisor (S1) testified
that she did not order complainant to retake the LPN Skills Test,
but merely suggested it as a good refresher course that might improve
her chances for promotion. Similarly, S1 noted that the comments on
complainant's performance appraisal were based solely on her performance,
citing an incident between complainant and a patient, and noting that
she could not go into the details due to a settlement agreement on the
matter. Finally, in regard to complainant's claim that she was denied
a detail, S1 noted that complainant never requested a detail and that
complainant's current assignment enabled her to develop GS-6 skills.
The agency concluded by noting that complainant failed to establish
that the agency's explanations were a pretext for discrimination or
retaliation.
On appeal, complainant essentially reiterates claims made during the
investigation. Complainant also provides medical documentation relating
to treatment she sought for depression and her other impairments, as
well as medical information about her daughters. The agency requests
that we affirm its FAD.
FINDINGS AND ANALYSIS
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission agrees
with the agency that complainant failed to establish discrimination
or retaliation by a preponderance of the evidence. In reaching this
conclusion, we note that even assuming complainant is disabled and
that she established a prima facie case of sex, age and disability
discrimination, as well as reprisal, she failed to establish that the
agency's explanations for its actions were a pretext for discrimination
or retaliation.
In regard to the promotion issue, several members of the LPNPSB testified
that complainant did not meet the criteria for a GS-6 position, noting
that she lacked the ability to work independently and failed to show
consistent good judgment. Complainant failed to come forward with any
evidence establishing that this explanation was a pretext. Similarly,
complainant failed to rebut S1's claim that she suggested complainant
retake the LPN Skills Test as a refresher course in an effort to help
complainant improve her chances for a promotion. There is no evidence
to indicate that S1 ordered complainant to take this test. Furthermore,
complainant did not dispute the agency's claim that she never asked for
a detail, nor did she indicate that others who did not ask for a detail
nonetheless received one. While complainant argued that her performance
appraisal had inappropriate negative comments, she did not provide any
evidence to rebut S1's explanation that complainant had certain problems
which needed to be recorded.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 28, 2001
Date
1The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants for
employment.