0120102155
10-15-2010
Greta R. Roan, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Greta R. Roan,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102155
Hearing No. 451200900189X
Agency No. 2003-0674-2009100143
DECISION
On April, 29, 2010, Complainant filed an appeal from the Agency's final order issued on March 31, 2010, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order (FO).
ISUE PRESENTED
Whether Complainant was subjected to discrimination and a hostile work environment on the bases of race and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Agency Cashier at the Veterans Affairs Outpatient Clinic facility in Austin, Texas. She began her employment with the Agency in March 2005. The management official she believes subjected her to a hostile work environment, her first line supervisor (Supervisor), became her manager when he joined the facility in August 2008.
On September 12, 2008, the Supervisor requested that Complainant cash a $14 check for a veteran. The Supervisor made this request three times before Complainant complied. After the second request, the Supervisor overheard Complainant telling the veteran that he should not be paid. Upon the third request, the Supervisor yelled to Complainant to cash the check and "to do as she was told."
On September 18, 2008, the Supervisor instructed Complainant to pay $105,000 to an ambulance service vendor. Complainant did not pay the bill until October 24, 2008, and was issued a proposed suspension for one day by the Supervisor, on December 5, 2008, for failure to follow instructions timely. The suspension was later reduced to a letter of reprimand in January 2009 by the Chief Medical Officer.
Complainant testified that on September 18, 2008, the Supervisor demeaned her in front of her colleagues. A Voucher Auditor (Auditor) on detail to the facility to train employees concerning online payment processing confirmed that the Supervisor spoke to her about Complainant's deficiencies, had other employees do the same thing, and yelled at Complainant that day as she walked by and indicated she was going to the warehouse for business reasons. She further testified that he was verbally abusive to everyone. The Auditor stated her belief that because the Supervisor had a military background, he expected compliance after only one request. When Complainant returned from the warehouse, the Supervisor accused her of going to the warehouse to be with a male employee because there was no work-related business for her to perform there, and just prior to her departure, he had seen the individual in the administration area even though he was not an administrative employee. ROI, at Ex. B-2.
On October 1, 2008, the Supervisor ordered an unannounced audit of Complainant's duties. He testified that he ordered the audit because Complainant was seen in her office at 9.30 p.m., and he suspected that she might be conducting a personal business using government resources. He further testified that this belief stemmed from a prior investigation of Complainant conducted in June 2009 for soliciting personal business from a veteran. Although the June 2009 audit did not substantiate the allegation of Complainant conducting a business, it showed that she attempted to make extra money and spent many hours on the phone which indicated a waste of government time.
Complainant also alleged discrimination because the Supervisor refused to assist her in reconciling invoices on October 16, 2008. The Supervisor stated that he did not assist Complainant because the invoices for which she requested help had already been reconciled as those duties had been assigned to another employee. Complainant alleged that because the payments were made on her credit card, she needed to ensure accuracy as she once discovered an error by the employee who had been given those duties.
On November 13 and 14, 2008, the Supervisor denied Complainant's request for, respectively, one and two hours of administrative leave to meet with her Union representative. The Supervisor testified that the denials were based on the facility's heavy patient load on those days.
As a result of the events as specified above, on January 14, 2009, Complainant filed an EEO complaint alleging a hostile work environment on the bases of race (Black) and reprisal for prior protected EEO activity. The Agency accepted the complaint for investigation. At the conclusion thereof, the Agency provided Complainant with a copy of the Report of Investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and her case was forwarded to the appropriate EEOC District Office and assigned to an AJ for review. The AJ held a hearing on June 9, 2009, and on March 16, 2010, issued a decision in which she found Complainant had not been discriminated against as alleged. The Agency subsequently issued a final order adopting the AJ's finding.
CONTENTIONS ON APPEAL
In her Brief in Support of Appeal, Complainant contends that the AJ gave unwarranted credence to the Supervisor's testimony for ordering an audit which did not sustain the charges of which she was accused; accusing her of leaving work to have a liaison with an unknown male; and requiring her to pay a male veteran even though it was against Agency policy. Complainant further contends that the Auditor's testimony, that the Supervisor yelled at everyone, should not have been given credence because she was only there on a one-day detail to the office, and therefore did not know what went on the rest of the days when she, the only African American female in the office, was the lone target.
The Agency's response requests that we affirm the AJ's decision.
ANALYSIS AND FINDINGS
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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999). Complainant's contentions on appeal, because they challenge the AJ's application of the substantial evidence rule, are inherently embodied in our findings and need not be addressed separately.
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should 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 at 6 (March 8, 1994).
The AJ found that the Supervisor's testimony concerning Complainant's late payment of the ambulance bill to be supported by the record. Therefore she found the Supervisor's proposed suspension, ultimately reduced to a reprimand by the Chief Medical Officer, to be substantiated by the record. The Agency provided records which show that the bill was due in July 2008, yet Complainant did not pay it until October. ROI, Ex. 262. The AJ further found the Supervisor and the Chief Medical Officer to be credible when they testified there were too many payments to be processed for Complainant to be away from her duties when she requested administrative leave to participate in Union activity.
Regarding the events of September 18, 2008, the AJ found that the evidence indicates that the Supervisor's behavior was unbecoming of a person in his position, but there was no evidence indicating that his actions were based on Complainant's race or previous EEO activity. The AJ's gave credence to the Auditor's testimony that she observed the Supervisor yelling at other employees, and that he was a hot tempered person. Contrary to Complainant's assertion on the appeal, we find that the Auditor's testimony supports the AJ's findings regarding the one day she was present, not days when she was not in the workplace. The AJ also found no evidence that the Supervisor yelled at Complainant regarding the $14 check she cashed for a veteran because of a prohibited reason. For the most part, we find that these matters constitute nothing more than isolated, routine supervisory interactions. A hostile or abusive work environment claim requires that an employee allege facts which, if proven true, may indicate that the employee was subjected to harassment that was severe or pervasive enough to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
The AJ found the Supervisor credible with respect to the audit he ordered because of Complainant's prior engagement in similar activity and the audit's conclusion that Complainant attempted to make extra money, and her use of government resources indicated a waste of government time. She further found him credible with regard to his reasons for why he did not assist Complainant in invoice reconciliation because though Complainant claimed she found error she provided no evidence.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's findings of fact are supported by substantial evidence. Therefore, we find no reason to disturb the AJ's decision, and hereby AFFIRM the Agency's FO.
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 (November 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
_____10/15/10_____________
Date
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0120102155
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102155