0120101439
07-30-2010
Joan E. Horne, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joan E. Horne,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101439
Agency No. 2003-0580-2008104802
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 12, 2010 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant was employed as a Program Support Clerk, GS-5, at the Agency's Radiology Service, VA Medical Center in Houston, Texas.
On January 19, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of race (Caucasian), religion (unspecified), and disability (Chronic immune demyelinating polyneuropathy) when:
1. on September 26, 2008, her first line supervisor (S1) verbally counseled her for contacting the Chief of Technology (S2) instead of contacting her when requesting sick leave;1
2. in September 2008, S1 became angry, and verbally counseled her for not quickly rescheduling patients after Hurricane Ike;
3. in June 2008, S1 threatened to place her in Absence Without Leave (AWOL) status even though she provided documentation regarding her hospitalization;
4. from approximately September 2007 to the present, S1 continuously told her that she needed to find another doctor to cure her chronic disease, for which there is no cure;
5. from approximately September 2007 to the present, S1 continuously told her that she needed to tell her doctor to give her more notice when she would need treatment in order to notify LP earlier regarding when she will be off work;
6. from approximately September 2007 to the present, S1 has falsely accused her of not telling anyone when she leaves the area to deliver abdominal solution or goes to the front desk for business purposes or when she is going to the restroom;
7. from approximately September 2007 to the present, S1 has falsely accused her of not answering the telephone even though she is responsible for answering eight different extension numbers;
8. from approximately September 2007 to the present, S1 has falsely accused her of not completing CT's protocols, patient paperwork, or scheduling too many or too few patients;
9. from approximately September 2007 to the present, S1 required her to check with her before scheduling a patient even though a physician has told her to schedule a patient;
10. from approximately September 2007 to the present, S1 has constantly made her feel like she is stupid or inferior when performing her duties which she has performed successfully for several years;
11. from approximately September 2007 to the present, S1 and the Lead Tech Special Procedures (LT) have required her to interact with hostilely aggressive patients even though the patients wanted to speak with LP or DD about their problems;
12. from approximately September 2007 to the present, LP continuously assigned her lists of patients that needed to be scheduled or rescheduled;
13. S1 failed to recognize commendations she received from physicians for her outstanding performance; and
14. when Complainant talked with S2 about the problems she was experiencing with S1, S2 asked her if she believed in Jesus and God or read the Bible. S2 then stated if you do, everything will work out.
At the conclusion of the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On January 12, 2010, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant failed to establish by a preponderance of the evidence that she was subjected to discrimination and harassment as alleged.2 The Agency nevertheless found that management articulated legitimate, nondiscrimination reasons for its actions which Complainant failed to show were a pretext.
Regarding claim 2, the record reflects that Complainant felt that S1 did not want her to have any compassion for patients who were impacted by Hurricane Ike, and that S1 was angry with her for not rescheduling the patients fast enough. S2 stated ". . . we had to reschedule a lot of patients after the hurricane, myself and all of the other techs that we had here, too. We tried to get them rescheduled in a timely manner. That's the knowledge that I have. Everyone was instructed to get these people rescheduled."
Regarding claim 7, LT stated that Complainant "has always informed me of when she was leaving the floor, I've never had an issue with that." LT further stated "I have never had a time or a moment where [Complainant] didn't tell me where she was going or why. I've never seen that as an issue, because I trust her to do her job because she's always done just that."
Regarding claim 8, LT stated that Complainant was "correct" when she claimed she cannot be held responsible for CT's that are not completed because she was not a supervisor. Specifically, LT stated that Complainant "has in the past alerted me, or made aware to me that there are some cases that the doctors or physicians were trying to get done, and she is correct, she is not responsible for any of that. Like I've always said before, she's always done a wonderful job, she will make me aware of any and all urgent situations. And it is my job, or the supervisor's job to do due to diligence on getting those patients and all the others done." Furthermore, LT stated that it was not Complainant's job "to make sure, to guarantee that patients are done, her job is to pass the information along, and she does that each and every time."
Regarding claim 11, LT stated that there were several occasions "when . . . either one piece of equipment is down or we're backlogged, and we have just one or two techs, and I myself am tied to the scanner, which means I am actually performing a can and I can't get to the front desk. And, in the past, [Complainant] has asked 'do you want me to go out and make an announcement that we're backlogged, or that we're running behind?' and I will say 'yes'." LT further stated that he would tell the technicians, including Complainant, that "if they have one that's really upset or hostile, tell them to hold on, let me finish the work that I'm doing, and I will get to them, or have them speak to one of the other supervisors, which would have been [S1] or one of the supervisors at the front desk."
Further, LT stated that during the relevant time, Complainant never told him that she was being subjected to a hostile work environment because management required her to interact with hostile and aggressive patients even though they wanted to speak with S1 and S2 concerning their problems. LT stated that all the patients "that I've dealt with, I've dealt with myself, and I'll just ask that [Complainant] or one of the other techs to hold on and I'll come out, and they'll say what they need to say, and I'll take care of them."
Regarding claim 13, the Agency, in its final decision, determined that there is no evidence in the record indicating that the alleged discriminatory events occurred. The record reflects that the Agency concluded that there was no record indicating that S1 failed to recognized commendations Complainant received from physicians for her outstanding performance based on the fact that S1 gave Complainant several contribution awards for her outstanding performance including $500 on December 30, 2008, $350 on July 8, 2008, $400 on February 24, 2007, $250 on June 6, 2008, $250 on April 27, 2006, $500 on July 24, 2006, and $150 on September 6, 2006.
Regarding claim 14, S2 stated that Complainant met with him to discuss the issues she was having several issues with S1. S2 stated that he asked Complainant what kind of problems she was having with S1, and Complainant stated "I don't think, I don't know, you know, the work that I do is valuable to her. I said, explain yourself. She said, 'I do good work.' I said, 'yes, you do.' Everybody else knows, I can only speak for what I see. She asked me, she says, '[S2], what would you do?' And like I would tell anybody it doesn't make a different where I'm at, if you ask me what would I do, I did say to her, with my faith because I believe in God, and I believe everything works out that way. I just put my trust in that and everything works out. That was my statement." S2 further stated that Complainant never told him that she felt harassed when he made that statement to her.
In regard to claims 1, 3 - 6, 9 - 10 and 12, the record does not contain a copy of S1's affidavit. In its final decision, the Agency stated that S1 retired prior to the investigation of the instant formal complaint, and chose not to participate.3 The Agency determined under such circumstances, that it would "construe the evidence in the light most favorable" to Complainant, and that it would "find the events listed in her Claims as Numbers 1 through 12 occurred."
On appeal, Complainant argues that she was subjected to ongoing harassment. For instance, Complainant argues that S2's remarks about God were inappropriate because "my religious beliefs are none of [S2's] business. Religious issues had nothing to do with the stress and hostile working environment that I was being compelled to endure."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This 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, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. 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); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above, regarding claims 2, 7, 8, 11, 13, and 14. Neither during the investigation nor on appeal has Complainant produced evidence that these proffered reasons were a pretext for unlawful discrimination and retaliation. Moreover, we note that in regard to the remaining claims identified in the instant formal complaint, S1, who is identified in these claims, had retired and that the Agency was unable to obtain an affidavit from S1, despite efforts to do so. In its final decision, the Agency clearly acknowledges the unavailability of S1, but determined that it would construe the events in the light most favorable to Complainant, and find that these matters occurred as she described them. The Commission determines, that considering the nature of the remaining claims, and reviewing them in the context of claims 2, 7, 8, 11, 13, and 14, discussed above, these claims are not reflective of discriminatory harassment.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
July 30, 2010
__________________
Date
1 The record reflects that during the period at issue, S1 retired from Agency employment and the Chief of Technology became Complainant's second line supervisor (S2).
2 For purposes of this analysis, we assume without finding that complainant was a qualified individual with a disability.
3 The Investigative Report indicates that following S1's retirement, various efforts were made to contact S1, in June 2009. Initially, S1 did not respond to messages left with S1; and that the Agency thereafter determined that attempts to contact S1 "met with negative results." An Agency official was asked if he was able to appoint someone to act on S1's behalf, but the Agency official indicated that he was unaware of anyone with knowledge of the incidents in the accepted claims, wherein S1 had been indentified.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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