0120113005
11-14-2012
Maria A. Young, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Maria A. Young,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113005
Agency No. 200P06642005103676
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 5, 2011 final decision concerning her equal employment opportunity (EEO) complaint alleging 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
At the time of events giving rise to this complaint, Complainant worked as a GS-4 Police Officer at the Agency's Healthcare System facility in San Diego, California.
On November 22, 2005, Complainant filed a formal complaint alleging that she had been subjected to hostile workplace discrimination on the bases of race (African-American), sex (female), disability (Anger and Psychiatric Condition), and reprisal for prior protected EEO activity under Title VII when: On August 25, 2005, her tour of duty was changed from the night shift to the day shift, as her authority to carry a firearm was suspended pending the outcome of a Fitness For Duty Examination (FFDE). During this period, Complainant was assigned to monitor the close circuit television for two days.
Also, Complainant amended her complaint to include the following events, dating from August 25, 2005 to February 3, 2006: 1) Effective February 3, 2006, she was placed on indefinite authorized absence/administrative paid leave and required to turn in her VA employee identification and government issued keys; 2) On January 31, 2006, she was given a notice of proposed removal; 3) On January 31, 2006, management failed to give her a complete copy of the evidence file supporting the proposed removal; 4) On January 23, 2006, the Chief of Police (Chief) wrote an e-mail to the Director, OS&LE stating that Complainant continuously refuses his assistance and berates his attempts to help her; 5) On January 19, 2006, the Chief denied her request to attend a free law enforcement training class given by the San Diego Police Department, but allowed a white male, non-police officer employee to attend; 6) On October 18, 2005, the Chief refused to allow her to review her Police Service personnel file; 7) On October 7, 2005, the Chief denied her request to review her Police Service personnel file; 8) From September 28, 2005 to present, management has failed to provide her with any counseling or re-training to assist her in remedying the cause of her suspension of her firearm and arrest authority; 9) On September 28, 2005, she was subjected to a psychiatric evaluation FFDE, and not provided any reason for it or what the consequences would be should she not cooperate; and 10) August 25, 2005 to February 3, 2006, she was ostracized and alienated by being assigned only the duties of monitoring closed circuit televisions.
Complainant stated that the Agency never explained why her authority to carry a firearm was suspended, or why she was subjected to a FFDE. As a result of Agency actions, Complainant asserted that she was ostracized by her peers. Complainant noted that she was not provided with any counseling or re-training, but instead issued a proposed removal letter. Complainant stated that she was placed on indefinite authorized absence and required to turn in her employee badge and government issued keys.
The Chief stated that because of continuing complaints about Complainant's manner and customer service, he sent her to three customer service training sessions in 2004 and 2005. However, Complainant's customer service skills did not get better. The Chief stated that, based on further, long-term complaints regarding Complainant's aggressive and provoking conduct, on August 25, 2005, he suspended Complainant's firearm authority. The incidents preceding this decision included reported conflicts and altercations with patients and employees. The Chief noted that Complainant declined to discuss these continuous, customer service and "anger" issues with her superior. The Chief stated that he changed Complainant's tour of duty from the night shift to the day shift, because she was not safely able to perform police duties on the night shift without a firearm. Complainant had also been seen accessing a computer for "personal" business. The Chief noted that after being detailed to the day shift, Complainant was assigned to monitor the close circuit television as part of her tasks.
The Chief stated that from late 2005 through early 2006, he did not recommend that Complainant get re-training relating to her firearm suspension because Complainant never expressed a desire in being re-trained. He further stated that he denied Complainant's request to attend training conducted by the San Diego Police Department on January 19, 2006, because she was performing administrative duties, and she was no longer carrying out the duties of a police officer, and she repeatedly refused to interact with him.
Agency management stated that because VA police officers must be certified to carry and use a weapon, it was required to conduct a FFDE exam to ensure Complainant's suitability for unrestricted duty as a police officer and to resolve the pending questions surrounding her psychological fitness to carry a firearm. The FFDE exam was conducted on September 28, 2005, and the examining physician found that Complainant was not fit to carry a firearm due to her "personality issues." The Medical Center Director stated that Complainant's firearm authority was further suspended because of this individualized medical and "psychological assessment." The Agency maintained that Complainant was appropriately issued notice of her scheduled FFDE exam, which incorporated notice of Complainant's right to submit psychological documentation from a private doctor.
The Agency maintained that because of the adverse FFDE determination, Complainant was unfit to safely perform the duties of a Police Officer. Consequently, Complainant was issued a Proposed Removal Letter, dated January 31, 2006, which placed her on paid authorized absence and necessitated that she turn in her Agency badge and keys.
In its Partial Acceptance Letter, dated February 21, 2006, the Agency noted that Complainant had raised two, additional harassment claims, involving two e-mail incidents, dated May 16, 2005 and July 26, 2005. Specifically, Complainant alleged that she had been harassed on the bases of race (African American), reprisal (union activity) and sex (female) when: 1) On May 16, 2005, she became aware that an Officer sent an e-mail to staff members in which he wrote that "Officer Young could not find her index card to call her home" and she "cannot understand her voice mall in order to leave a message"; and 2) On July 26, 2005, an e-mail dated July 22, 2005, which she sent to police management, was forwarded by the Chief to all personnel in Police Service.
As Complainant had added the basis of reprisal, the Agency dismissed the basis of reprisal for union activity because it did not relate to protected activity. Further, the Agency dismissed these two incidents for failure to state a claim. However, we will include these claims as part of the Commission's ANALYSIS AND FINDINGS (below) of Complainant's overall harassment complaint.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing in this matter. However, at Complainant's request, on September 27, 2007, the AJ dismissed Complainant's request for a hearing without prejudice with the provision that she could renew her request for a hearing within three months, but no later than December 31, 2007. The record reflects that there is no documentation showing that Complainant requested a hearing within the designated time frame. Specifically, the administrative record indicates that, between September 27, 2007 and June 7, 2011, no action was taken by Complainant or the Agency regarding final resolution of her case. Therefore, the Agency issued a final decision in this matter.
In its final decision, the Agency found no discrimination. The Agency determined that, even if Complainant could establish a prima facie case, management had recited (above) legitimate, nondiscriminatory reasons for its actions.
In conclusion, the Agency found that the events of which Complainant complains, either individually or collectively fail to rise to the level of unlawful harassment prohibited by the Rehabilitation Act or Title VII. Most importantly, there is no evidence that any of the actions or decisions of Agency management were motivated by unlawful reasons. Complainant failed to establish that any of management's reasons for its actions were pretextual or unworthy of belief. Complainant failed to establish discrimination under either the theory of disparate treatment or unlawful harassment.
On appeal, Complainant asserts that the Agency denied her due process and improperly found no discrimination in this matter. She further asserts that the Agency did not adequately address her claims of harassment.
ANALYSIS AND FINDINGS
This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2005/2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). An employer is subject to vicarious liability for harassment when it is "created by a supervisor with immediate (or successively higher) authority over the employee." Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Here, Complainant asserted that based on her race, sex, disability and reprisal, management continuously subjected her to a hostile work environment. However, we find no evidence of a nexus between the actions disputed by Complainant and her statutorily protected classes. While Complainant has cited various incidents where Agency management took actions that were either adverse or disruptive to her, we find that Complainant fails to show that these incidents were as a result of unlawful discrimination, and management witnesses have articulated legitimate, non-discriminatory reasons for the actions taken. To the extent Complainant is alleging disparate treatment with respect to her claims, even assuming she is an individual with a disability as defined in the Rehabilitation Act, she has not proven, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination. Finally, the record does not show that based on a claimed disability, Complainant made a request for a reasonable accommodation to management or that management has failed to respond to her request for a reasonable accommodation.
After a review of the record in its entirety, including consideration of all statements submitted 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
November 14, 2012
__________________
Date
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0120113005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113005