01a60122_r
03-07-2006
Charlotte Joubert, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Charlotte Joubert v. Department of Veterans Affairs
01A60122
March 7, 2006
.
Charlotte Joubert,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A60122
Agency No. 200305802004101044
Hearing No. 330-2004-00181X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Staff Nurse
at the agency's Medical Care Line Emergency Room, VA Medical Center,
Houston, Texas. On October 6, 2003, complainant filed a formal complaint.
Therein, complainant claimed that she was subjected to harassment on
the bases of race (African-American), national origin (American), and
in reprisal for prior EEO activity when:
(1) on December 19, 2003, the Christmas party was scheduled where she
could not attend;
(2) on November 13, 2003, her request to review, complete, sign, and
get a copy of her evaluation was ignored;
(3) in November 2003, a staff announcement was issued to the effect
that written notices would be given to those who called in sick, thereby,
creating additional stress;
(4) on November 4, 2003, her evaluation did not accurately reflect her
overall performance;
(5) on August 11, 2003, she was falsely accused of leaving work early,
in a severe and perverse tone in front of other staff;
(6) in July 2003, she discovered that other employees received a cash
award and that she did not;
(7) on June 3, 2003, she was verbally counseled in a severe,
intimidating, rude and demeaning manner by the ER Nurse Manager about
following the chain of command;
(8) since June 2003, she was restricted from wearing a black uniform top;
and
(9) from December 14, 2003 through January 2004, she was denied leave.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision on August 31,
2005, finding no discrimination.
In her decision, the AJ found that complainant failed to establish a
prima facie case of race and national origin discrimination. The AJ
further found that even assuming complainant established a prima facie
case of race and national origin discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its actions. Further,
the AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. The AJ noted that the evidence reflected that there
were personality conflicts between complainant and the Nurse Manager.
Regarding the basis of reprisal, the AJ found that complainant established
a prima facie case of reprisal discrimination. The AJ further found
that the agency articulated legitimate, nondiscriminatory reasons for
its action which complainant failed to show was a pretext.
On September 7, 2005, the agency issued a final order implementing the
AJ's decision finding no discrimination.
Regarding claim (1), the Nurse Manager (NM) stated that she did not
schedule the Christmas party on December 19, 2003. NM further stated
that a named staff nurse organized the Christmas party. NM stated that
she herself was not interested in arranging a Christmas party because
of the difficulty in getting employees �grouped together." However, the
NM acknowledged that the staff wanted to have a Christmas party and that
various staff employees indicated that they would plan it, and that one of
the staff members said she would contact a relative who was employed at a
local hotel to check on its availability for a party. NM stated that she
did not give the named staff nurse any type of guidance when to schedule
the Christmas party. NM stated that according to the staff nurse, the
Christmas party was scheduled for December 19, 2003 because it "was the
only available time the hotel was available to hold the party."
Regarding claim (2), NM stated that at the time of complainant's
evaluation, complainant refused to sign it. NM further stated that if
an employee does not agree with an evaluation, the employee is welcome to
place a written comments to the agency's Clinical Practice Office through
the NM, and that �it could be added to the submission to the Professional
Board.� The record reflects that NM placed a copy of the evaluation in
complainant's box, and though complainant had indicated that she wanted
to contest the evaluation, she did not do so in a timely manner.
Regarding claim (3), NM stated that during a staff meeting in November
2003, she informed the staff that "they will be counseled if they abuse
the leave, like sick leave or FFL." NM further stated that she did not
single anyone out during the meeting. Furthermore, NM stated that she
has never counseled complainant concerning sick leave because "she's
got good attendance."
Regarding claim (4), NM stated that she gave complainant an overall
satisfactory rating for the 2002-2003 period. NM further stated that she
gave complainant a highly satisfactory rating under the clinical skills
section, and a satisfactory rating under the interpersonal skills section.
Specifically, NM stated that "professionally in terms of nursing care,
she is good dealing with patients. She does excellent patient care."
NM however stated that she received complaints from patients and
co-workers concerning complainant's interaction with them. NM stated
that according to a co-worker, complainant is not a team player because
"she's selective on the people she would like to help." NM stated that
co-workers complained that complainant "does not act professionally on the
job. She curses and makes unnecessary comments against her coworkers."
NM stated that the main reason why she gave complainant a satisfactory
rating under the interpersonal skills section was because complainant
"does not communicate well to the rest of the staff just like she does
with the doctors, and I do have a problem with that." NM stated that
she felt that if complainant "communicates well with the physician, I
expect that she does the same way with her coworkers and to me as well."
Furthermore, NM stated that complainant's race, national origin and
prior protected activity were not factors in her determination to give
complainant a satisfactory rating for the 2002-2003 period.
Regarding claim (5), NM stated that on August 8, 2003, she attempted to
locate complainant because she had a question. NM further stated that
because she could not locate complainant, she asked other staff nurses
and learned that complainant had left work early. NM stated that on
August 11, 2003, she "calmly" asked complainant where she was and that
complainant became upset with her. NM stated that complainant told her
that she was outside with someone during the relevant time, and that
"her voice was raised already." NM informed complainant that she even
went outside looking for complainant but was unable to find her.
Regarding claim (6), NM stated that in July 2003, complainant received
a non-monetary award. NM further stated that she did not nominate
complainant for a cash award because she did not meet her criteria.
Specifically, NM stated that the criteria she applies when nominating
employees for cash awards in her unit is "when it's a total, both
patient care, doing any activity or any kind of participation that
is far and beyond their activity in the unit, and also plus attitude
and communication with everyone, including me; and they have to be
professional at all times."
Regarding claim (7), the record reflects that the Medical Care Line Nurse
Executive (NE) stated that on June 3, 2003, she called complainant to
her office concerning issues with the emergency room. NE further stated
that her request to have complainant come to her office "was in no way
rude or intimidating, and if it was following the chain of command, then
I do have the right to ask her to ask the chain of command in order to
resolve any issues related to the Emergency Room, and if I can recall,
it was a fairly pleasant meeting."
Regarding claim (8), NM stated that she was the deciding official on
what the appropriate wear would be for the emergency room personnel.
NM further stated that in June 2003, she held a meeting concerning
the agency's dress code. Specifically, NM stated that she informed
employees, including complainant, that because the agency's acceptable
dress code policy in the emergency room "is the cranberry color uniform,"
they were expected to wear cranberry colored uniforms. NM stated that "
that units have particular color codes for wearing that type of uniform,
the color is for the unit to identify the employee." With respect to
complainant's argument that NM told her not to wear a black uniform top,
NM denied making the statement to complainant. NM stated that at the
time of the meeting, complainant was wearing "an entire black uniform,
scrubs, top, bottom, and a jacket, and our uniform color is cranberry, and
I did not ridicule her, I didn't humiliate her, I just said to everybody
at that time we were having the staff meeting and she was wearing the
uniform, I said that uniform is not allowed, we have a dress code that
we need to follow." Furthermore, NM stated that complainant was allowed
to wear a black top "as long as it's not all pure black."
Regarding claim (9), NM stated that complainant's request annual leave
from December 21, 2003 to December 29, 2003 was denied. NM however
stated that she granted complainant three days off during the relevant
time (December 21, 22 and 23, 2003). NM stated that no one was granted
leave seven days of annual leave from December 14, 2003 to January 2004.
Specifically, NM stated that "it is the guidelines given to us from
management that during the times of the holidays, that people are not
particularly given a whole week of annual leave from the middle of
December until the 1st of January."
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.
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 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). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
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 the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. 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); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission determines that the AJ's findings of fact are supported
by substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that the agency's actions were motivated by discriminatory animus toward
complainant's race, national origin or reprisal. Although the AJ did
not specifically address complainant's harassment claim, we find that
the incidents of harassment identified by complainant were neither
sufficiently pervasive or severe to create a hostile environment.
We discern no basis to disturb the AJ's decision.
After a careful review of the record, we AFFIRM the agency's final order,
implementing the AJ's finding of no discrimination.
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
March 7, 2006
__________________
Date