0120110376
03-25-2011
Wanda Bryan, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Wanda Bryan,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01-2011-0376
Hearing No. 510-2010-00024X
Agency No. 200L-0548-2009-101111
DECISION
On October 15, 2010, Complainant timely filed an appeal from the
Agency's September 15, 2010, final order 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.
The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's final
order.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge (AJ)
properly issued a decision without a hearing finding that Complainant
did not establish that she was subjected to unlawful discrimination or
harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Medical Support Assistant at the Agency's facility in West Palm
Beach, Florida.
On March 23, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American),
disability (heart problems), and reprisal for prior protected EEO activity
under Title VII when:
1. Since October 2007, on a day-to-day basis, the overseers of the
Home-Based Primary Care Program (C1 and C2) called Complainant's
supervisor (S1) to complain about her;
2. On or about May 11, 2008, Complainant received a negative performance
evaluation;
3. In May 2008, Complainant was blocked in and yelled at in her cubicle,
was stood over and intimidated while she typed, was yelled at in front of
other employees by C1, and told she had to do what the Program Director
told her to do;
4. On December 16, 2008, Complainant was given improper instructions
regarding her duties, and when she asked for assistance, she was told
she was there to help everyone;
5. On December 17, 2008, all nurses, doctors, social workers, and
the dietician were asked to provide copies of errors committed by
Complainant;
6. On December 23, 2008, Complainant's supervisor asked to meet with her
and others to clarify her job duties and was told by the supervisor that
she was not a team player; and
7. On several occasions, Complainant was threatened and "put down."
In an investigative affidavit, Complainant stated that a physician
(Dr.) asked her to schedule an appointment for a resident with a provider,
which is something that she had never done before. Exhibit B-1,
pp. 12-16. She stated that scheduling a resident with a provider is
not part of her official job description and felt that Dr. gave her this
assignment simply because she is the Program Clerk, and he feels that she
is there to assist him. Complainant further stated that she has never
been trained to do this duty, and when she brought her concern to Dr.,
he told her that she was the clerk and it was her job to assist him.
Complainant also stated that C1 and C2 complained about her to S1
regarding her telephone usage and talking with co-workers, and claimed
that Complainant would not perform tasks that she was assigned to perform.
Exhibit B-1, pp. 28-29. Complainant stated that C2 complained about
Complainant not being at her desk and not informing C2 about what she
doing. Complainant stated that the complaints were basically petty,
and she felt that she was being constantly watched.
Complainant further stated that S1 issued her an "unjust negative
performance evaluation" on May 11, 2009. She stated that S1 rated her
"Fully Successful," but on a separate sheet of paper, S1 listed areas
in which Complainant needed improvement. Complainant stated that she
felt that she should have received a higher annual performance rating
based on the fact that she has gone above and beyond in her performance.
Complainant also stated that on April 21. 2008, C1 yelled at her and
told her in front of other employees that Complainant had to do whatever
C1 told her to do because C1 was the Program Director. She further
stated that C1 would consistently come into her cubicle and stand over
her. Complainant stated that C1 once interrupted her discussion with a
psychiatrist and yelled and screamed at Complainant while standing over
her, which did not allow Complainant to move out of the cubicle.
Complainant stated that S1 informed her that she was supposed to help
everyone that needed assistance, even after the union had informed
Complainant that she did not have to take care of residents. Complainant
stated that she provides assistance to over fourteen providers, but there
are only seven to eight hours in a workday, and she cannot be expected
to do everything without some sort of assistance.
Complainant also stated that on or about December 17, 2008, a couple
of nurses and social workers (not identified) approached her to inform
her that management had asked them to keep copies of any mistakes made
by Complainant. She further stated that the nurses and social workers
said that they were not going to comply with the directive, but she did
not have proof that they did not comply.
Complainant stated that that during a meeting on December 23, 2008,
she was told by Dr., S1, and C2 that she always says no to requests,
and she is not a team player. Complainant stated that when she went to
the meeting, it was her understanding that the purpose of the meeting
was to discuss issues with S1, and she was surprised to see Dr. and C2
at the meeting. Complainant stated that Dr. said that Complainant was
not a team player because every time that he asked her to perform an
assignment, her answer was "no." She further stated that she was also
shocked when C2 also told her that she was not a team player because
C2 had not even been in her position for one month. Complainant stated
that S1 also stated that she was not a team player. Complainant stated
that she felt embarrassed and insulted because this was not the proper
forum to discuss her performance.
Complainant stated that C2 threatened and "put her down" in reference to
an assignment that C2 gave to her. She stated that as she was working
on the assignment, C2 approached her about another assignment that she
needed to be done immediately, and Complainant told her that she would get
to the new assignment as soon as she finished the previous assignment.
Complainant stated that C2 told her that she did not understand the
meaning of the word "priority" and that priority means "ASAP" (As Soon
as Possible). Complainant stated that she felt put down by C2 because
C2 would email S1 about Complainant's completion of assignments.
S1 stated that C1 would complain to her about Complainant's work and the
mistakes that Complainant made. S1 stated that C1 and the Complainant had
numerous issues with each other to the point that they had to participate
in a dispute resolution session, which resulted in both being moved
away from the other. She stated that S1 became so frustrated with the
situation that she chose to retire. S1 stated that C2 replaced C1,
but she had the same problems with Complainant.
S1 stated that the medical facility has a residency program with two
physicians who rotate in Geriatrics and Extended Care, and "Home-Based
Primary Program" employees work with the providers. Exhibit B-2,
pp. 15-18. S1 further stated that Dr. asked Complainant to schedule
a resident to go out with a provider and gave Complainant the list she
needed to carry out the assignment. She stated that while it is true that
Complainant had never performed this specific duty, Dr. had explained to
her what she needed to do. S1 stated that this assignment fell within the
"other duties as assigned" that are within Complainant's job description.
S1 stated that she issued Complainant a performance rating of "Fully
Successful," and when she presented this rating to Complainant and her
union representative, she mentioned there were things that Complainant
needed to improve. S1 stated that Complainant needed to improve her
interpersonal skills, her scheduling of appointments, and updating of
policies. S1 stated that Complainant did not perform at the "Excellent"
level and made several mistakes in her work. She stated that on one
occasion, Complainant sent one of her physicians to the wrong patient
address, which wasted the physician's time. She also stated that on
another occasion, Complainant scheduled a visit for one of their doctors
with a patient who was not even at home. She stated that Complainant
makes mistakes on correspondence she prepares, such as addressing a
female patient as "Mister." She further stated that Complainant lacked
interpersonal skills with co-workers and questions assignments she is
given to perform. She stated that although she verbally counseled
Complainant on these issues, she has not reduced anything to writing.
S1 further stated that she told Complainant that she has to help
everyone who needed assistance because Complainant has a tendency to
complain about someone asking her to do something. She stated that she
had to remind Complainant that she is the Program Clerk, and as such,
it is her responsibility to provide assistance to the staff. She also
stated that she also reminded Complainant that the work she does as a
Program Clerk is important to the organization.
S1 stated that C1 told her that told she got near Complainant to whisper
in her ear so that everyone in the area would not be aware of what was
being discussed. S1 stated that Complainant works in an open cubicle with
open areas, and C1 never blocked her from leaving the area. S1 stated
that Complainant is usually the one yelling and screaming. S1 further
stated that C1 did not try to intimidate Complainant, but if Complainant
was sitting down and C1 was standing, it may have appeared that C1 was
standing over Complainant. She stated that C1 would ask Complainant to
come into her cubicle to discuss issues, but Complainant never went.
S1 stated that during the meeting, Complainant became very hostile towards
C2 to such an extent that Dr. and Complainant's representative asked her
to calm down. S1 stated that she said Complainant was not a team player
because she was informed that when nurses asked her to do something,
Complainant said no. She stated that the meeting was not designed to
"gang up" on Complainant.
C2 stated that she sent S1 emails that informed her that Complainant
failed to follow instructions and get things done. Exhibit B-3.
C2 stated that she provided Complainant with all of the information that
she needed to perform her duties, but she still did not accomplish them.
She stated that she consistently needed to "stay on" Complainant in
order to get her to be productive. C2 stated that she became Program
Director in August 2008 and attempted to get Complainant to update the
policy list that expired in January 2008, but Complainant still had not
completed that assignment. She stated that she sometimes became so
frustrated with Complainant's lack of productivity that she gave up and
moved on to something else. She further stated that Complainant never
provided her with a reason why she was not performing her assignments.
Exhibit B-3, p. 10.
C2 stated that she could not recall whether she was present at a meeting
with Complainant. However, she stated that in reference to the charge
that Complainant always said no to requests, Complainant did not say no,
she just did not do the requested assignments. She further stated that
Complainant was not a team player, made errors in scheduling appointments,
and was very defiant.
C2 stated that she went to a mediation session with Complainant in an
effort to address the conflict between her and Complainant. She stated
that during the mediation, it was discussed how both of them would try to
work with each other and how C2 would try to show her how to perform some
of her duties, but there was no long-term resolution to their conflict,
and management separated them from one another.
Dr. stated that he has never sought any type of information about
Complainant's performance or conduct from other staff members. Exhibit
B-4, p. 4. He stated that he did not consult with S1 about problems with
Complainant's performance, but S1 addressed those issues with Complainant.
Dr. stated that he was in a meeting with Complainant, but he never
said that she was not a team player and always said no to requests.
He stated that the purpose of the meeting was to review her work duties.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an AJ. Complainant timely requested a hearing.
The Agency moved for a decision without a hearing in its favor, but
Complainant did not respond to the motion. On July 20, 2010, the AJ
issued a decision without a hearing in favor of the Agency in which he
found that Complainant was not subjected to unlawful discrimination
or harassment. Specifically, the AJ determined that Complainant's
"repeated resistance, failure and/or refusal to perform the tasks
assigned to her" appeared to make her insubordinate, and there is nothing
about management's actions that rendered it unlawful discrimination.
AJ's Decision, p. 19. The Agency subsequently issued a final order
fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly issued a
decision in favor of the Agency. Complainant argues that S1 issued her
a performance rating based on C1's representations because S1 worked in
a different location than Complainant. Complainant further argues that
the union advised her that she did not have to take care of residents,
yet S1 asked nurses, social workers, dieticians, and doctors to provide
her with copies of Complainant's work errors. The Agency requests that
we affirm its final order.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the Agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an Agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
Chap. 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (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").
ANALYSIS AND FINDINGS
Decision without a Hearing
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,
issuing a decision without holding a hearing is not appropriate. In the
context of an administrative proceeding, an AJ may properly consider
issuing a decision without holding a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003). We find that the AJ properly issued a decision without a hearing
because Complainant failed to show that a genuine issue of material fact
or credibility existed.
Disparate Treatment and Hostile Work Environment
Generally, claims of disparate treatment are examined under
the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must
first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802;
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). For instance,
to establish a prima facie case of reprisal, Complainant must show that
(1) she engaged in protected EEO activity; (2) the Agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse
treatment by the Agency; and (4) a nexus exists between her protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once a complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance of
the evidence that the Agency's reason(s) for its action was a pretext
for discrimination. At all times, Complainant retains the burden
of persuasion, and it is her obligation to show by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16
(1983).
In this case, we assume without so finding that Complainant established
a prima facie case of discrimination as to all bases. Nevertheless,
we find that the Agency provided legitimate, non-discriminatory reasons
for the alleged actions, as detailed above.
Complainant contends that S1 issued her a performance rating based on
C1's representations. It is undisputed that S1 worked in a different
office than Complainant, and relied upon C1 and C2's input to evaluate
Complainant's performance. However, we find S1's reliance on C1 and C2 to
evaluate Complainant to be reasonable under the circumstances, especially
in light of the fact that C1 and C2 worked closely with Complainant.
Moreover, Complainant has not provided any evidence that she was
rated "Successful" because of her EEO activity, race, or disability.
Complainant further argues that the union advised her that she did not
have to take care of residents, yet S1 asked nurses, social workers,
dieticians, and doctors to provide her with copies of Complainant's
work errors. Complainant failed to identify the nurses and social
workers who allegedly told her that management asked them for evidence
of Complainant's work errors. Although there is ample evidence in the
record that Complainant had a strained and volatile relationship with her
supervisors, Complainant has not provided any persuasive evidence that any
of the alleged actions were attributable to her race, disability, or EEO
activity. Thus, we find that Complainant failed to provide any evidence
from which a reasonable fact-finder could conclude that the Agency's
non-discriminatory reasons were pretext for unlawful discrimination.
To establish a claim of harassment, a 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 to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982).
Based on our determination that Complainant has not established that the
Agency's actions were motivated by discriminatory animus, we are precluded
from finding that Complainant was subjected to discriminatory harassment.
Consequently, we find that the AJ properly found no discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the Agency's final order for the reasons set forth in this decision.
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 (Nov. 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
March 25, 2011
Date
2
01-2011-0376
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110376