0120055680_r
12-08-2006
Carol Copeland, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Carol Copeland v. Department of Veterans Affairs
0120055680
December 8, 2006
.
Carol Copeland,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120055680<1>
Agency No. 200K-0609-2004101548
Hearing No.210-2004-00419X
DECISION
Complainant filed an appeal with this Commission from the August 12,
2005 agency decision finding no discrimination.
Complainant, a Human Resources Specialist who worked at the agency's
Marion Medical Center in Illinois, alleged that the agency discriminated
against her on the bases of her sex (female), age (D.O.B. August 23,
1954), and in reprisal (filing an administrative grievance) when it
subjected her to harassment as follows:
a. On January 5, 2004, complainant's supervisor issued complainant
a letter of counseling regarding complainant's sick leave usage.
b. On January 16, 2004, complainant's supervisor issued complainant
a letter of counseling regarding complainant's unprofessional conduct.
c. On January 26, 2004, complainant's supervisor did not designate
her as the acting supervisor even though complainant had the next level
of authority and did not communicate with complainant when he was away
from the office.
d. About January 2004 and ongoing, complainant's supervisor required
complainant to call in to him to request leave but did not hold other
employees to the same standard.
e. About January 2004 and ongoing, complainant's supervisor excluded
complainant from office lunches, functions, and meetings pertaining to
complainant's job description.
At the conclusion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ) or,
alternatively, to receive an agency decision. Complainant requested
a hearing. On July 28, 2005, the AJ remanded the case to the agency
because complainant failed to comply with a pre-hearing order.
Regarding claims (a) - (e), the agency concluded that complainant failed
to establish a prima facie case of sex discrimination. The agency also
concluded that complainant failed to establish a prima facie case of age
discrimination for claims (a), (b), and (c). Regarding claims (a) and
(b), the agency noted that complainant identified two females of ages
41 and 43 who were not issued counseling when they abused their leave.
The agency stated, however, that there was no evidence that the two
females or any other employees requested sick leave, changed sick
leave to annual leave, or engaged in a pattern of sick leave usage, as
had complainant. The agency further stated that because complainant
provided no data establishing that other employees violated human
resource disclosure protocols (regarding making inappropriate public
disclosures of protected data or taking and keeping their official
personnel files without permission), she failed to show that younger
employees were treated more favorably in these matters. Regarding claim
(c), the agency also concluded that complainant failed to show that
younger employees were designated to serve as acting supervisor.
Regarding claim (d), the agency stated that complainant did provide
evidence that two former employees may not have followed leave procedures
on four occasions. Regarding claim (e), the agency concluded that
complainant established a prima facie case of age discrimination because
complainant observed her supervisor having lunch in the office with
younger employees.
Regarding complainant's claim of reprisal, the agency stated that while
complainant participated in the grievance process, she did not establish
that the grievance involved a claim of discrimination and that, therefore,
she failed to establish a prima facie case of reprisal.
The agency further concluded that even if complainant established a prima
facie case on all bases for all claims, the agency articulated legitimate,
nondiscriminatory reasons for its actions and that complainant failed
to show that the agency's reasons were pretextual. Regarding claim (a),
the agency noted that complainant was issued the first counseling letter
because she requested sick leave and then changed it to annual leave
without notifying her supervisor. The agency also found that when the
supervisor reviewed complainant's sick leave because of complainant's
action, he found that complainant was engaging in inappropriate sick
leave usage. Regarding claim (b), the agency stated that the second
counseling letter was issued because during a meeting complainant
blurted out personal, protected financial information pertaining to other
employees and because complainant inappropriately maintained her official
personnel file in her office. Regarding claim (c), the agency noted
that complainant's supervisor denied not communicating with complainant
as needed and stated that he coordinated his absence with the business
office for supervisory reasons. Regarding claim (d), the agency stated
that all employees were held to the same leave approval standards.
Regarding claim (e), the agency noted that the supervisor stated that
most of the time he had lunch at his desk but that on occasion he did
participate in official lunches with staff. The supervisor noted that
he attended a luncheon with a work study student (complainant rode in
the same car with the supervisor on the way to lunch) and attended a
Christmas luncheon (complainant had called in sick on that day).
As an initial matter, the Commission notes that because this is an
appeal from an agency 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. See 29 C.F.R. � 1614.405(a).
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. A claim
of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he or 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
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 its action, 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).
On appeal, complainant argues that the AJ's decision to remand the
case to the agency for a decision without a hearing was incorrect.
When a complainant or an agency fails to comply with an AJ's Order,
an AJ may take action against the non-complying party pursuant to
29 C.F.R. �1614.109(f)(3), up to and including issuing a decision in
favor of the opposing party, or take such other actions as appropriate.
The record reflects that complainant was informed in October 2004, by
the AJ that prehearing submissions and dispositive motions were to be
submitted to him by December 14, 2004, and that a prehearing conference
was scheduled for December 22, 2004. The record reflects further that
complainant did not provide her prehearing submission nor request an
extension of time to do so. The Commission finds that the AJ's Order
remanding the matter for an agency decision was appropriate.
The Commission next addresses the merits of the complaint. Assuming
without deciding that complainant established a prima facie case of
sex, age, and reprisal<2> discrimination, we conclude that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
We also conclude that complainant failed to show by a preponderance of
the evidence that the agency's explanations for its actions were mere
pretext to hide unlawful discrimination and were otherwise motivated
by discriminatory animus. Here, the record does not establish that
discrimination was the reason for the agency's actions. We further
conclude that complainant failed to establish that she was subjected to an
environment severely and pervasively hostile. The Commission notes that
at all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to meet this burden.
The agency's finding of 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
December 8, 2006
__________________
Date
1Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2The Commission notes that the record does not show that complainant
participated in EEO activity prior to her initiating EEO Counselor
contact in February 2004. The record also does not show that the
grievance complainant filed alleged discrimination.