01a46105
07-19-2006
Catherine Andreoli, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Catherine Andreoli v. Department of Veterans Affairs
01A46105
July 19, 2006
.
Catherine Andreoli,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A46105
Agency No. 2004-0688-2003-101
Hearing No. 100-2004-00288X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
VACATES and REMANDS the agency's final order.
The record reveals that during the relevant time, complainant was employed
as a Clinical Specialist Educator for Critical Care at the agency's
Veterans Medical Center in Washington, D.C. Complainant filed a formal
complaint on April 4, 2003, alleging that she was discriminated against
on the basis of disability (impairment: back injury) and in reprisal
for prior protected activity when the following incidents occurred:
(1) her supervisor failed to process her worker's compensation
documentation in a timely manner which caused her a loss of pay;
she received a proposed admonishment letter in October 2002 and then
a final admonishment letter in January 2003;
her request for advanced sick leave was denied;
her request for Family Medical Leave to care for her son was denied;
she was removed from the Prisma Project in February 2003 and her duties
were all reassigned;
her �Competence Evaluation� was changed from �Satisfactory� to �Low
Satisfactory;�
her supervisor failed to correct her leave record; and
she was threatened with being placed in absent without leave status
(AWOL).
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
The AJ concluded that several of the incidents when considered separately
from the others, failed to state a claim. For instance, the AJ found that
the incident where she was threatened with being placed in AWOL status
was merely an isolated remark and not accompanied by any concrete action.
The AJ further found that certain incidents such as the issuance of a
letter of admonishment, were the subject of the agency's negotiated
grievance process which could not be also appealed through the EEO
process. Finally, the AJ concluded that complainant's challenges to
the agency's processing of documents relating to her receipt of worker's
compensation benefits failed to state a claim.
Of those remaining incidents or acts, the AJ concluded that there was
no dispute of material fact that the agency had legitimate reasons for
its actions. Specifically, the AJ found that there was no dispute that
complainant was taking excessive unplanned leave which contributed to
her �low satisfactory� evaluation and that complainant was taken off the
Prisma Project because the project was not moving forward. The agency's
final action implemented the AJ's decision.
On appeal, complainant contends the AJ erred in dismissing some of the
incidents for failure to state a claim and for untimeliness because
they should be considered in the aggregate with other incidents as
part of a pattern of harassment. More specifically, she claimed that
her supervisor's delay in submitting worker's compensation papers was
designed to harass her because she was disabled and because she had sought
EEO counseling. She further argued that threats to place her on AWOL,
a proposed admonishment and constant failures to approve her leave all
constituted harassment based on her protected classes.
Complainant further argues that the AJ's decision that any of her claims
were untimely raised was an error because all of the incidents alleged
were part of a continuing pattern of harassment related to events that
were timely raised. That is, the proposed admonishment though outside of
the 45 day time period of her contact with an EEO counselor, was timely
raised because it was connected to the final admonishment letter as well
as other incidents which were raised in a timely manner.
The agency argues that the AJ's decision was correct and should be
affirmed. For the reasons outlined below, the Commission vacates the
agency's final order.
ANALYSIS AND FINDINGS
There are several principles that apply in our decision to remand
this matter for a hearing. First, we conclude that the AJ improperly
fragmented complainant's complaint of hostile work environment by treating
individual incidents as separate claims. The Commission has discouraged
this practice because it prevents the statement of a coherent and
integrated claim. Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), ch.5(III) (November 9, 1999). In this
case, the AJ improperly considered some factual incidents as separate
claims, such as the agency's threat to charge complainant with being
AWOL, its denial of leave under the Family and Medical Leave Act and its
proposed discipline shortly after complainant was injured. Additionally,
the AJ carved out all of the incidents related to the agency's processing
of her worker's compensation claim and treated them separately from other
acts of alleged harassment. Finally, the AJ separately considered the
agency's proposal to admonish complainant as well as the final decision
to formally reprimand complainant. The decision to fragment this single
hostile work environment harassment claim was in error.
Aside from the improper fragmenting of complainant's claim of harassment,
the Commission concludes that complainant timely raised the final letter
of admonishment issued on January 3, 2003 in EEO counseling on January
6, 2003. The agency's decision to carry through the admonishment in a
subsequent action merges with the proposed action. See, e.g., Charles
v. Department of the Treasury, EEOC Request No. 05910190 (February 25,
1991)(proposed action merges with effectuated action). Thus, the AJ's
decision to dismiss on this ground was in error. There are no other
issues of timeliness as all remaining incidents alleged were raised
within the 45 day time period of EEO counseling or were raised after
the initial counseling period.
Additionally, the AJ concluded that the letter of admonishment was the
subject of a grievance and as a result, must be dismissed pursuant to
29 C.F.R. � 1614.301(a). Similarly, the AJ concluded that complainant's
claim that her �low satisfactory� evaluation was based on discriminatory
motives was challenged in a grievance and should be dismissed. However,
the record contains no evidence that the grievance process in question
permitted claims of discrimination to be raised, nor that complainant's
evaluation was formally contested through the grievance process.
Therefore, dismissal on this ground was not correct in either instance.
The AJ dismissed all of complainant's allegations related to the
processing of her worker's compensation claim for benefits as failing to
state a claim. According to complainant, these incidents occurred over
several months beginning in November 2002 through March 2003 and caused
her to lose pay. We view complainant's claim as alleging the denial of
pay based on her supervisor's deliberate delays. Complainant also alleged
that these delays were part of the pattern of harassment and as such
they were not separate and distinct from the other alleged incidents.
Since we have concluded that the AJ erred in fragmenting complainant's
claim of harassment, we turn to the question whether, when viewing
the evidence in the light most favorable to complainant, complainant
has established that the issuance of a decision without a hearing was
improper.
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). 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). 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.
Here, complainant claims that she was subjected to harassment on the
basis of her disability and in retaliation for her prior protected
activity, which requires us to view the claim in the context of the
applicable law.<0> Significantly, the AJ's decision failed to make
any determination regarding complainant's status as an individual with
a disability under the Rehabilitation Act.<0> The AJ also failed to
conduct any analysis of complainant's claim of retaliation. In this
regard, the record established that complainant sought EEO counseling
in January 2003 which was closely followed by the issuance of a letter
of admonishment, her removal from the Prisma Project in February
2003, further delay in processing worker's compensation papers and
her low satisfactory evaluation in March 2003 among other disputes.
Complainant alleged her supervisor (S) was aware of her protected EEO
activity because she had a conversation with S about the subject of her
filing an EEO complaint. Based on these facts, a reasonable fact finder
could conclude that complainant has demonstrated a sufficient nexus to her
protected activity from which an inference of retaliation can be drawn.
Moreover, when considering the incidents alleged in the light most
favorable to complainant, the Commission concludes there are sufficient
facts from which a reasonable decision-maker could find harassment.
The complaint, when not improperly fragmented, adequately described
a series of acts and incidents which could have been motivated by
complainant's protected classes. According to the record, complainant
experienced a reoccurrence of a back injury in October 2002 and was
on leave for one month thereafter. During this and subsequent time
periods, complainant claims that she began to have problems with her
supervisor, specifically, her request for leave to care of her son
which was routinely approved before her injury but then was denied;
her request to use sick leave which had been advanced was not applied,
and other disputes regarding leave requests occurred. Complainant also
alleged that even though she had been approved for worker's compensation
benefits, her supervisor deliberately delayed signing appropriate forms
causing continuous delays in her pay over a six month period.
During this same time period, complainant alleged that her performance
evaluation, normally rated �outstanding� or �highly satisfactory� was
rated as �low satisfactory.� Complainant alleged that the proposed
admonishment which she had been told would not be pursued, became
final the day after the agency learned that she would be filing an EEO
complaint. We conclude that these facts if assumed to be true, may be
enough for a reasonable fact finder to conclude they were sufficiently
severe or pervasive to constitute harassment and were based on one or
both of her protected classes.
Additionally, the Commission disagrees that there was no dispute of
material fact that the agency reasons were legitimate and that there
was no evidence that those reasons were a pretext for discrimination.
For example, the agency contended that complainant had many instances
of unplanned leave which resulted in her receiving a �low satisfactory�
evaluation. However, contrary evidence reflects that, according to
work place procedures in effect, complainant's supervisor could not use
instances of unplanned leave related to a medical condition as a basis
for a low evaluation. Complainant stated that she had previously been
approved for leave to care for her disabled son before her injury but
afterwards she was harassed about taking this kind of leave.
The same is true of the AJ's conclusion that the agency had legitimate
reasons for removing complainant from the Prisma Project. Her conclusion
that �the project was not moving forward� was based solely on the
statement of complainant's supervisor and failed to account for
complainant's opposing statement. That is, complainant disputed S's
contention that she failed to move things forward in terms of training
all necessary employees on the use of the new equipment.<0> Complainant
contended that at the time of her removal from the project, S told her she
did not have to give her a reason for her removal but that in any event,
she had ensured all employees had the required training. At the summary
judgment stage, the evidence of the non-moving party, here complainant,
must be believed and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. Summary judgment is not to
be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766,
768 (1st Cir. 1975). Pedersen v. Department of Justice, EEOC Request
No. 05940339 (February 24, 1995) (when a party submits an affidavit and
credibility is at issue, there is a need for strident cross-examination
and summary judgment on such evidence is improper).
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission vacates the
agency's final action and remands the matter to the agency in accordance
with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the Washington Field
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the
date you filed your complaint with the agency, or filed your appeal
with the Commission. 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.
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
July 19, 2006
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________ ______________________________
Date 0 1To establish a prima facie case of harassment based
on a disability, complainant must show that: (1) she is a member of
a statutorily protected class; (2) she was subjected to harassment
in the form of unwelcome verbal or physical conduct related to his
membership in that class; (3) the harassment complained of was based
on her membership in that class and/or her prior EEO activity; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment.
Further, the harasser's conduct is to be evaluated from the objective
viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994). Further, the incidents must have been
�sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment.� Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner
Offshore Services, Inc., 23 U.S. 75 (1998); Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). In the case of
harassment by a supervisor, complainant must also show that there is a
basis for imputing liability to the employer. EEOC Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors
Compliance Manual No. 915.007 (June 18, 1999).
0 2The evidence of record indicates complainant injured her back while
lifting on the job and then experienced two subsequent re-injuries
which limited her to lifting no more than ten pounds and sitting and
standing no more than 20 to 25 minutes at a time. She has been diagnosed
with �foot drop� but with assistance with lifting mannequins during
cardiopulmonary resuscitation classes, she is able to teach the class.
Thus, the record contains sufficient evidence from which it could be
concluded that complainant is a qualified individual with a disability.
0 3The Prisma Project as described in the record concerned a new patient
treatment known as continuous renal replacement therapy.