01a44810
04-27-2005
Thelma Turney, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Thelma Turney v. Department of Veterans Affairs
01A44810
April 27, 2005
.
Thelma Turney,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44810
Agency Nos. 200M-0567-2003100059, 200M-0567-2003100728
Hearing No. 320-2004-00086X
DECISION
Complainant filed this appeal with the Commission from the June 1, 2004
agency order which implemented the April 27, 2004 decision of the EEOC
Administrative Judge finding no discrimination.
Complainant was employed as a registered nurse at the Pueblo clinic at
the agency's Colorado Springs clinic in Colorado Springs, Colorado.
Complainant filed two complaints of discrimination alleging that she
was discriminated against on the bases of sex (female), disability
(knee impairment, depression, post traumatic stress disorder, bladder
dysfunction), age (D.O.B. July 21, 1960), and reprisal for prior EEO
activity when:
1. Complainant was not selected for the position of staff nurse at
the Alamosa clinic; and
2. Complainant was verbally counseled on November 4, 2002, placed on
a performance improvement plan on December 5, 2002, and sent home on
authorized absence.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ at the
Commission's Denver District Office. The agency filed a motion for
summary judgment on March 19, 2004. On April 27, 2004, the AJ issued
a decision without a hearing (summary judgment). In her decision, the
AJ noted that complainant did not object to, controvert, or respond to
the agency's motion for summary judgment, nor did she request additional
time to respond.
Regarding claim 1, the nonselection, the AJ concluded that complainant had
established a prima facie case of sex and reprisal discrimination but did
not establish a prima facie case of age or disability discrimination.<1>
Regarding claim 2, the AJ concluded that complainant did not establish
a prima facie case of sex, age, or disability discrimination.<2>
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Regarding claim 1, the AJ
noted that the agency required a person who would work independently with
a high degree of dependability and that the selectee could do so while
complainant had performance and dependability problems. The AJ further
concluded that complainant had presented no evidence that the agency's
reason for the selection was motivated by discrimination or unworthy
of credence and mere pretext. Regarding claim 2, the AJ found that
complainant was counseled in private concerning body odor in response
to a complaint from a patient and that she was placed on authorized
absence for improper treatment of a patient. The AJ also found that
complainant was not placed on a performance improvement plan. The AJ
concluded that complainant failed to show that the agency's actions were
motivated by discrimination.
The record reveals that complainant was one of three applicants for the
vacant position and that one of the applicants withdrew. Complainant was
found to be qualified but she was not selected.
In sworn answers provided to a questionnaire, complainant indicated
that she was more qualified than the selectee because of her experience.
She stated that the selectee was a male with no experience. Complainant
further stated that the clinic manager told her that she would not be
selected and indicated that her nonselection occurred close in time to
a prior EEO activity.
The selecting official stated in her affidavit that the agency contracted
with a physicians' group to provide care for veterans living in the San
Luis area. She also stated that the vacancy for which complainant applied
was for a staff nurse who would be the only agency employee working in
the contract clinic and who would act as the liaison between the contract
facility and the agency. The selecting official stated that she had to
have total confidence that the person selected would be at the clinic to
act as the liaison and to meet with patients. She further stated that
the person selected for the position had to be able to perform very
independently because the clinic was an outreach clinic and was very
isolated. The selecting official stated that the selectee, a veteran,
lived and was raising a family in Alamosa. She testified that she talked
with the selectee several times over the telephone, that she contacted his
references, and that he came to Pueblo one day and met with her in person.
Regarding complainant, the selecting official stated that she
did not talk with or meet complainant and that complainant, to her
recollection, was placed off duty at the time and was not available.
She also stated that she had discussions with complainant's supervisor,
who was then clinic manager of the Colorado Springs Outpatient Clinic.
The clinic manager indicated that complainant was having performance and
dependability issues. The two also discussed complainant's possible
placement on a performance improvement plan. The selecting official
stated that complainant was going to be placed on a performance
improvement plan because of medical record documentation issues and
interpersonal relationships with staff. The selecting official further
stated that she was also aware that complainant had difficulties with
her family that required that she not be at work for a large amount of
time and that complainant was unable to cover her area because of time
and attendance issues.
The selecting official stated that she made her selection based on
whom she felt could best do the job, on whom she could depend to make
decisions without a lot of guidance and on which individual would be
dependable because of the uniqueness and isolation of the clinic.
Regarding the performance plan, the affidavits of the employee
relations specialist, the head nurse, and the clinic manager reflect
that complainant was not placed on an official performance improvement
plan and that complainant developed the plan regarding her goals and
presented it to the agency.
Regarding the authorized leave, the head nurse and the clinic manager
stated that complainant was placed on such leave because of an incident
involving complainant's shaving of a callous on the foot of a diabetic
patient who had already had two toes removed. The head nurse stated that
this was a surgical procedure that nurses had no authority to perform.
The clinic manager stated that complainant's action was a violation of
nursing practice and complainant was placed off duty until the matter
was further investigated.
Complainant presented no arguments on appeal. As an attachment to
her appeal form, complainant provided an letter dated April 23, 2004,
addressed to the AJ purporting to respond to the agency's March 19,
2004 motion for summary judgment.<3>
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. See 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The 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 to the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See United States 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).
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists.
As an initial matter, the Commission notes that the allegation of
verbal counseling is appropriately analyzed as a failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a). There is no evidence of any
adverse personnel action taken as a result of the verbal counseling nor
has complainant shown how she suffered any loss or harm as a result of
the counseling.
Assuming without deciding that complainant has established a prima
facie case of sex, age, disability and reprisal discrimination, the
agency has articulated legitimate, nondiscriminatory reasons for not
selecting complainant for the position, verbally counseling complainant,
having complainant on an unofficial performance improvement plan which
complainant wholly designed, and placing complainant on authorized
leave. Regarding complainant's nonselection, the Commission notes that
pretext may be demonstrated in a number of ways, including a showing
that complainant's qualifications are observably superior to those of
the selectee. See Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). The Commission also notes that an employer
has the discretion to choose among equally qualified candidates provided
that the employment decision is not based upon unlawful criteria. Here,
complainant has not shown that her qualifications for the position were
so plainly superior to those of the selectee so as to warrant a finding
of pretext. Considering the record as a whole and construing the evidence
to be most favorable to complainant, complainant has failed to establish
that any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Accordingly, the agency's decision finding no discrimination 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
April 27, 2005
__________________
Date
1We note that in her complaint concerning the nonselection, complainant
identified the bases of discrimination as sex, age, and reprisal.
2In claim 2, complainant's complaint reflects that she alleged as bases
sex, age, disability and reprisal.
3We note the April 23, 2004 letter is stamped as received at the
Commission's Denver District Office on April 30, 2004, which was three
days after the AJ issued her summary judgment decision.