01a45504
11-29-2004
Sabrina Washington, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Sabrina Washington v. Department of Veterans Affairs
01A45504
November 29, 2004
.
Sabrina Washington,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A45504
Agency No. 200K-0695-200410008
Hearing No. 260-04-00070X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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., 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. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that, during the relevant period, complainant was
employed as a GS-6, Licensed Practical Nurse at the agency's Medical
Center in Milwaukee, Wisconsin. Complainant filed a formal EEO complaint
on November 13, 2003, alleging that the agency had discriminated against
her on the bases of race (African-American), disability (bee sting,
herniated disk, respiratory infection, arthritis, pink eye), and in
reprisal for prior EEO activity when:
(1) on August 29, 2003, she did not receive physical therapy or a light
duty assignment;
on September 1, 2003, she was charged Absent Without Leave (AWOL);
on September 29, 2003, her co-workers failed to mark down that she had
called in late;
on November 14, 2003, she was admonished for alleged patient abandonment;
from November 2, 2003 to November 6, 2003, she was reported as being
AWOL; and,
on January 9, 2004, she was reprimanded.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish that she was
discriminated against on the basis of disability. Specifically, the AJ
found that complainant failed to demonstrate that any of her impairments
limit a major life activity. The AJ also found that complainant did not
establish a prima facie case of race discrimination. In particular,
the AJ found that complainant failed to show that similarly situated
employees not in her protected classes were treated differently under
similar circumstances. The AJ further found that there was no evidence
that any of the agency's actions were done in retaliation for complainant
initiating the EEO process.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that she was treated differently than White LPN's.
Complainant also contends that the AJ told her that she did not have
a case. The agency requests that we affirm the FAD.
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. If a case can
only be resolved by weighing conflicting evidence, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider a decision without a hearing
only upon a determination that the record has been adequately developed
for summary disposition.
After a careful review of the record, the Commission finds that grant of
a decision without a hearing in the agency's favor was appropriate, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to be
most favorable to complainant, we note that complainant failed to present
evidence that any of the agency's actions were motivated by retaliatory
motive or discriminatory animus toward complainant's protected classes.
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
November 29, 2004
__________________
Date