0120083591
02-24-2010
Pamela Cyrus, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Pamela Cyrus,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083591
Hearing No. 450-2007-00384X
Agency No. 2003-0549-2006101961
DECISION
On August 20, 2008, complainant filed an appeal from the agency's July 24, 2008 final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant worked for the agency for approximately five years and was working as a Management Analyst (GS-09) in the Nursing Service of the North Texas VA Health System facility in Dallas, Texas. Complainant's position was also called an Automated Data Applications Coordinator (ADPAC). Her position description included multiple computer hard and software-related responsibilities. For purposes of this decision, we note, in general, that her duties were within the context of an automated system and included "managing the implementation and coordination of processes within the Nursing Service related to the efficient operation, data validation and electronic documentation of medical records." She was also responsible for "training related to the correct utilization of clinical patient care software programs." See Report of Investigation, Exhibit C-3.
On July 25, 2006, complainant filed a formal EEO complaint, as amended. Therein, complainant claimed that she was discriminated against on the bases of race (African American), sex (female), age (44), and in reprisal for prior protected EEO activity when:
1. From August 2005 through July 2006, her request for reclassification to GS-11 was held without further processing;
2. In March 2006, some of her duties were removed which affected her performance as ADPAC for the service;
3. In March 2006, "critical" equipment required to perform her duties was removed from complainant's assigned area;
4. In October 2006, her performance appraisal was on a clerk's desk with an un-issued PIP attached to it from July "until the present;"
5. She was issued a Letter of Admonishment; and
6. She was "ostracized from the group and deprived of relevant information."1
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 timely requested a hearing. The AJ held a hearing on June 13, 2008 and issued a decision on June 30, 2008. In his decision, the AJ concluded that complainant failed to establish a prima facie case of discrimination on any of her alleged bases; that even assuming she did so, the agency articulated legitimate and non discriminatory explanations for all of the alleged events; and that complainant failed to prove those explanations were a pretext for unlawful discrimination.
Specifically, the AJ found that complainant refused to agree to a desk audit that was required before her position could be reclassified to a GS-11. The AJ found that the Associate Director of Nursing Services stopped her from: (1) attending meetings where her presence was not required and (2) from training on "medical matters." The AJ found that complainant admitted telling her supervisor that it was the supervisor, and not complainant, who had a "communication problem" which gave rise to the Letter of Admonishment. The AJ found that no critical equipment was ever removed from complainant's work area but that when complainant disagreed with her manager about how equipment should be assigned, the manager overruled her. The AJ found that the PIP was withdrawn immediately after it was given to complainant and thus did not affect a term or condition of her employment. Finally, the AJ found no evidence that complainant was ostracized and that her exclusion from nurse manager meetings did not deprive her of information she needed in order to do her job.
The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant expresses disagreement with the AJ's conclusions. Complainant reiterates her belief that she was treated differently than other ADPACs; that she is the only black female and clinical ADPAC who has not been promoted; that management has ostracized her by removing job duties; that the way the computer staff is organized fosters discord; and that her supervisor did not respect her.
While requesting that we affirm its final order, the agency responded with a concise summation of its legitimate and non discriminatory explanations for its actions which provides some more specific detail than that found in the AJ's decision.
For example, when complainant complained that her workload was too heavy and requested assistance with several projects, management reassigned the National Nurses Education Initiative, a scholarship program, to the Nurse Recruiter's Retention and Placement Program. In addition, the Bar Code Medication Program was also reassigned from complainant to the Bar Code Medication Coordinator. The agency also removed nursing duties from everyone, including complainant, who were neither nurses nor managers. This agency action meant being excused from nurse manager meetings where confidential information was exchanged and being removed from the nurse manager email group. Complainant was invited to give presentations at the nurse manager meetings as needed, and her ADPAC expertise was still used in connection with nurse education. Finally, regarding the removal of "critical" equipment, complainant, on two occasions, was tasked with distributing laptops to some patient areas. On both occasions, complainant refused to deliver the laptops stating that that was not her job. Therefore, management had another employee distribute the computers.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In his decision, the AJ explicitly found management's testimony to be more credible than complainant's testimony. The AJ stated that complainant's body language and facial expressions undermined her credibility. He also observed that she was "mentally preparing answers" to questions before they were fully asked, resulting in incomplete and confused responses. On appeal, complainant claims that this was because so much time had elapsed between the incidents and the hearing that she had trouble remembering.
Upon review of the record, we find that the AJ's factual findings are supported by substantial evidence. There is no objective evidence which would warrant reversing his credibility determinations nor is there any evidence tending to prove that the agency's explanations were not the real reasons for management's actions. The record does suggest a level of acrimony between complainant and management that no doubt creates an unpleasant work environment, but in order to hold the agency liable for violating Title VII and/or the ADEA, complainant must prove, by a preponderance of the evidence, that unlawful motivation was behind the agency's action. Complainant did not convince the AJ of that, and offers nothing on appeal which compels us to disturb his findings.2 His conclusions of law are consistent with his factual findings. We discern no basis to overturn his decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final order.
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 24, 2010
__________________
Date
1 The agency dismissed a claim concerning the scheduling of a mediation as a "spin off"
complaint.
2 The AJ did not address the agency's dismissal of the spin off claim. Although, on appeal, complainant mentions that there were problems with the scheduling of the mediation, she fails to rebut the fact that such a claim is correctly characterized as a "spin off" claim. We find that the agency was correct not to process it as a distinct claim of unlawful discrimination.
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0120083591
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013