0120083862
02-11-2009
Phyllis M. Austin, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Phyllis M. Austin,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083862
Agency Nos. 200L-0598-2005-103387, 200L-0598-2006-100118,
200L-0598-2006-101010, 200L-0598-2007-100499, 200L-0598-2007-101059
Hearing Nos. 490-2006-00130X,
490-2006-00187X 490-2007-00179X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 15, 2008 final order concerning five
captioned EEO complaints that claimed 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.
Complainant alleged that the agency discriminated against her on the bases
of race (African-American) and in reprisal for prior EEO activity when:
1. on April 11, 2005, she was placed on medical certification status
for leave usage, while a co-worker who was absent without leave (AWOL)
did not receive medical certification;
2. she was charged 32 hours of AWOL for the period of April 25, 2005
to April 28, 2005, and her request for reassignment to another ward was
denied by the Associate Charge Nurses;
3. on or around September 12, 2005, she was treated in a disparate
manner when given a revised proficiency report containing inaccurate
information;
4. on or about November 4, 2005, she was issued a written counseling
report, verbally counseled on January 21, 2006 and on March 1, 2006,
placed on a Performance Assistance Plan for thirty days;
5. on or about November 3, 2006, her supervisor violated her privacy
when she informed others that complainant was in the EEO process;
6. on December 3, 2006, she was required to work the midnight tour of
duty;
7. on or about December 7, 2006, she was discriminated against with
respect to time and attendance when she was charged with AWOL;
8. on January 26, 2007, her supervisor gave her a written counseling; and
9. on January 26, 2007, she was not promoted to Nurse II.
Following a hearing held on June 4, 5 and 6, 2008, the AJ issued a
decision finding no discrimination. Specifically, the AJ concluded
that complainant had not met her burden of proving that the agency's
reasons for its actions were a pretext to discriminate against her.
The agency subsequently adopted the AJ's decision in its final order.
As an initial matter, the Commission notes that one witness testified
by telephone at the hearing held by the AJ. The Commission has held
that testimony may not be taken by telephone in the absence of exigent
circumstances, unless at the joint request of the parties and provided
that specified conditions have been met. See Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).1 However,
because the facts of this case pre-date Louthen, the Commission will
assess the propriety of taking the testimony of some witnesses by
telephone, considering the totality of circumstances. Here, it is
unclear whether exigent circumstances existed. However, it is clear
that there were no issues of witness credibility that might have been
impacted by the taking of this testimony by telephone, and neither party
objected to the manner in which those witnesses testified. Under these
circumstances, even if it is assumed that the AJ abused his discretion
by taking testimony by telephone, the Commission finds that his action
would have constituted harmless error.
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.
Having reviewed the record, we find that the evidence substantially
supports the AJ's decision. Even if we assume that complainant
established a prima facie case of race and reprisal discrimination, we
agree with the AJ that the agency provided legally sufficient legitimate
reasons for its actions and that complainant failed to prove that these
reasons were pretext.
It is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final order because the AJ's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.
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
February 11, 2009
__________________
Date
1 In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent.
When assessing prior instances of telephonic testimony, the Commission
will determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further,
where telephonic testimony is improperly taken, the Commission will
scrutinize the evidence of record to determine whether the error was
harmless, as is found in this case.
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0120083862
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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