01a51374
05-24-2005
Ethel M. Jones, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Ethel M. Jones v. Department of Veterans Affairs
01A51374
May 24, 2005
.
Ethel M. Jones,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51374
Agency Nos. 99-3333 & 99-5664
Hearing No. 160-AO-8779X
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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a Registered Nurse at the agency's
Albany VA Medical Center, filed two formal EEO complaints on July 22,
1999 and November 3, 1999, which the agency consolidated and in which
complainant alleged harassment and disparate treatment on the bases of
race (African-American) and age (D.O.B. 12/08/37) when:
(1) On May 27, 1999, management officials placed her on a performance
improvement plan (PIP);
(2) On May 14, 1999, management officials denied her a within-grade
increase;
(3) On August 21, 1999, ward physicians criticized her technical
skills; and
(4) On September 9, 1999, a nurse educator questioned her about her
retirement plans.
The facts in this case are as follows. On May 14, 1999, management
denied complainant a within-grade increase purportedly because she did not
perform up to expected standards. Complainant was also placed on a PIP on
May 27, 1999, after receiving a performance counseling letter allegedly
because she had been observed giving an inconsistent and incomplete
patient assessment, and because she had discharged an elderly patient
without assuring he had adequate medication for home care. According
to complainant, the PIP was not effective because she was only given
negative comments and trained in a very hurried and incomplete manner.
See Affidavit B-1 at 10:13-11:4. According to management, complainant
did not meet the improvement plan and consequently she did not receive
a later within-grade increase. See id. at 11:14-25.
Earlier that year, on or about February 6, 1999, complainant failed to
respond to a physician's call regarding a patient. Complainant claims
that at the time, she followed standard procedure. See id. at 12:13-13:3.
The physician involved in the incident states that complainant had
problems assessing patients for vital signs and responding to and
reporting to the doctors when their patients felt ill. See Affidavit
B-7 at 6:21-7:10. Also, in February, management held a series of
counseling meetings with complainant regarding her poor performance.
See Affidavit B-8 at 7:22-25.
On August 21, 1999, another physician criticized complainant's skills
when she handled an emergency situation where a patient became very
ill needed blood-work. The physician stated that complainant was �slow
on the uptake.� Affidavit B-1 at 15:14. According to the physician,
complainant, who was charge nurse, had difficulty covering the emergency
and was unable to answer questions about what took place. The physician
also stated that complainant on a few occasions was unprepared to respond
to doctors' calls. See Affidavit B-6 at 6:6-14; 7:20-8:12.
Later, on September 9, 1999, while complainant met with the Nurse
Educator assigned to monitor her PIP progress, the Nurse Educator
asked complainant, �how long are you planning on working and what are
you going to need to get to that point?� Affidavit B-1 at 18:15-17.
Complainant interpreted these questions as asking when she planned on
retiring. See Counselor's Report at 3. The Nurse Educator countered
stating that the questions really referred to her career goals and were
relevant because they were asked during a meeting when she and complainant
were developing the PIP. See Affidavit B-4 at 20:4-11.
At the conclusion of the investigation, complainant received a copy
of the investigative report 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 complainant failed to establish a prima facie
case of race and age discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees not
in complainant's protected classes were treated differently under similar
circumstances. With regard to the harassment claim, the AJ found that
the alleged acts of harassment did not rise to the level of actionable
harassment because these acts did not affect a term or condition of
employment and did not have the purpose of effect of unreasonably
interfering with or creating a work environment. See AJ Decision,
at 6-7. The agency's final order, dated October 13, 2004 implemented
the AJ's decision. Complainant submitted no statement on appeal.
The agency requests that we affirm its final order.
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. See 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, the issuance of a decision
without a hearing is not appropriate. Similarly, an AJ may not issue
a decision without a hearing if he or she actually has to find facts
first to do so.
The Commission finds that here the issuance of a decision without a
hearing was appropriate, as no genuine dispute of material fact existed.
Nevertheless, we shall review the decision de novo pursuant to 29 C.F.R. �
1614.405(a).
If a complainant does not have direct evidence of discrimination, he
or she must establish at least a prima facie case of discrimination.
See St Mary's Honor Cntr. v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A complainant may
establish a prima facie case of disparate treatment on the basis of a
discriminatory factor by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in an adverse employment action. See Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978). Of particular significance
is evidence that the same management officials afforded more favorable
treatment to an employee outside of complainant's protected groups under
similar circumstances. See id. In order for such comparative evidence
to be probative of discrimination, all relevant aspects of complainant's
employment must be nearly identical to those of the comparative employee.
See O'Neal v. U.S.P.S., EEOC Request No. 05910490 (July 23, 1991).
If the complainant establishes a prima facie case, the burden of
production falls to the agency to establish a nondiscriminatory reason
for the challenged action. See Burdine, 450 U.S. at 253-54; McDonnell
Douglas, 411 U.S. at 802. If the agency articulates a nondiscriminatory
reason through admissible evidence, any prima facie inference drops
from the case. See Hicks, 509 U.S. at 507, 510-11. The complainant
then must prove by a preponderance of the evidence that the proffered
explanations are a pretext for discrimination. See id. at 511; Burdine,
450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. Pretext can
be demonstrated by �showing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the [Agency's]
proffered legitimate reasons for its action that a reasonable fact finder
could rationally find them unworthy of credence.� Morgan v. Hilti, Inc.,
108 F3d 1319, 1323 (10th Cir. 1997) (quotations omitted). However, �mere
conjecture that [the] employer's explanation is a pretext for intentional
discrimination is an insufficient basis for denial of summary judgment.�
Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988);
see also George v. United States Postal Serv., EEOC Appeal No. 01A31214,
(July 28, 2003). At all times the ultimate burden of persuasion remains
on complainant.
We find that complainant indeed failed to establish a prima facie case
of race discrimination. Although management officials are aware that
complainant is African-American and complainant suffered an employment
related harm for which there is a remedy, the Commission agrees with
the AJ that she has not successfully established a prima facie case
of race discrimination because evidence exists showing that similarly
situated co-workers not in her protected class were treated similarly,
if not worse, than complainant. Complainant states that she feels that
she was �singled out� by management because of her race and age. See
Affidavit B-1 at 7:16-21. However, she presents no evidence to support
an inference of race discrimination. On the contrary, evidence exists
that Caucasian nurses were treated similarly to complainant � denied
within-grade increases and placed on similar performance observation
plans � in fact, on at least two occasions, Caucasian nurses were treated
worse than complainant, receiving a suspension rather than being placed
on a PIP, for similar errors of conduct. See Affidavit B-5 at 7:14-17;
Affidavit B-1 at 24:13-25:14; ROI Ex. C-11.
We disagree however with the AJ that complainant failed to establish
a prima facie case of age discrimination. The comparative evidence
presented shows that most, if not all of the nurses who received similar,
or worse, discipline for errors of conduct were above 40, or �middle
aged.� See Affidavit B-5 at 7:14-17; ROI Ex. C-11; Affidavit B-1 at
24:13-25:14, 25:17-26:3; Affidavit B-2 at 11:22-12:1. Furthermore,
testimony by a Staff Registered Nurse reveals that complainant's age
�has been an issue.� Affidavit B-2 at 7:12-20 (complainant's age is an
issue �[f]rom what I can tell the way things are being questioned on the
floor and how [complainant] is being � I don't want to say targeted or
singled out � but the way she's been approached.�). Thus we find that
complainant has raised a prima facie case of age discrimination.
For the sake of discussion, we will assume that complainant established
a claim of both age and race discrimination. The next step in the
analysis is determining whether the agency articulated a legitimate,
nondiscriminatory reasons for acting the way it did. With regard to the
denial of a within-grade increase and being placed on a PIP, the agency
states that as early as February 1999, management met with complainant
to discuss her unsatisfactory performance and give her an opportunity
to improve. See Affidavit B-8 at 6:13, 18; 7:22-25. Her performance
did not improve, so she was placed on a PIP to help her with her
essential job functions. Management withheld the increase because they
did not want to reward her marginal performance with a pay increase.
See Affidavit B-3 at 12:20-23; Affidavit B-5 at 4:11-14. With regard
to the criticism of her skills and the questioning of her retirement
plans, two physicians testified that after observing and interacting
professionally with complainant, they felt they needed to complain to
management about complainant because they believed complainant lacked
�basic nursing skills.� Affidavit B-7 at 7:22-24; see also Affidavit B-6
at 5:7-10. As for the retirement comment, the Nurse Educator explained
that her question focused on complainant's career goals which she needed
to know in order to tailor PIP curriculum. See Affidavit B-4 at 20:6-9.
As a final step in the analysis, we look at whether complainant
successfully rebuts the agency's non-discriminatory reason for its
actions, and shows that the reasons are pretextual. Complainant provides
no concrete evidence to show pretext. For the most part, her evidence is
made up of statements of belief. See Affidavit B-1 at 7:16-21, 17:22-25.
However, as the Commission has repeatedly held, subjective belief does
not constitute evidence of pretext or provide a basis for remedial relief.
See Higgins v. Dep't of the Army, EEOC Appeal No. 01910835 (Apr. 8, 1991).
The only other evidence that complainant provides is the testimony of a
Staff Registered Nurse, who says that she had evaluated and was a mentor
to complainant in 1997, and that at that time, complainant's skills
were �right up there with everyone else.� Affidavit B-2 at 8:11-9:9.
But with regard to the allegations at issue, this witness also only
offered statements of belief and even stated, specifically with
regard to the physician's comments, that it was hard to tell whether
the comments were motivated by a discriminatory sentiment because the
�doctor in question is fair.� Id. at 10:22-11:1. Therefore, we find
that complainant failed to prove that the agency's articulated reasons
for acting were pretext masking a discriminatory animus. Finally, under
the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993), complainant's claim of harassment must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6 (March 8, 1994).
A prima facie case of harassment is precluded based on our finding that
complainant failed to establish that any of the actions taken by the
agency were motivated by her race or age. See Oakley v. United States
Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
In sum, we find that the issuance of a decision without a hearing was
proper in this matter. Complainant established a prima facie case of age
discrimination, but not of race discrimination. Nevertheless, assuming
that she properly established both prima facie claims and construing the
evidence to be most favorable to complainant, she failed to rebut the
agency's non-discriminatory reasons with evidence that those reasons
are pretextual, hiding a discriminatory animus towards complainant's
protected classes. Similarly, complainant also fails to prove her
harassment claim. Accordingly, the Commission AFFIRMS the final agency
order implementing the AJ's decision.
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
May 24, 2005
__________________
Date