Jacqueha J. Chaney, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 12, 2003
01A24637 (E.E.O.C. Jun. 12, 2003)

01A24637

06-12-2003

Jacqueha J. Chaney, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Jacqueha Chaney v. Department of the Army

01A24637

June 12, 2003

.

Jacqueha J. Chaney,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A24637

Agency No. BKEK0002A0010

Hearing No. 310-A1-5108X

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 Community Nurse at the agency's

Reynolds Army Hospital, Fort Sill, Oklahoma, filed a formal EEO complaint

on March 24, 2000, alleging that the agency discriminated against her:

(1) on the bases of race (Caucasian), sex (female) and age

(D.O.B. 9/14/49) when she was informed that her clinical privileges

were rescinded;

on the bases of race, sex, age and reprisal for prior EEO activity when

she was subjected to unlawful harassment; and,

on the basis of reprisal for prior EEO activity concerning her

performance evaluation, working conditions, job instruction and the

failure of the agency to upgrade her position description and/or

grade level.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). Following a hearing, the AJ issued a decision

finding no discrimination.

Concerning complainant's allegation that the Chief Nurse

(African-American, D.O.B. 10/26/50), who supervised the Community

Health Nursing (CHN) Department where complainant worked, removed

her clinical privileges, the AJ found that the Chief Nurse overreacted

in threatening the job of complainant but was not motivated by race,

sex or age. Rather, he found her actions were based upon a legitimate

concern over the qualifications of the complainant and her co-worker

(African-American, D.O.B. 1/1/44, with prior EEO activity). He found that

the credentials issue was examined by the hospital's Credentials Committee

as well as complainant's supervisors and finally was decided by the

hospital Commander. The AJ found that complainant lacked the education

or training required by law to have prescriptive refill authority and

there was no evidence of race, sex or age discrimination by the agency.

The AJ found that there was very little in the record that relates to

race, sex, age or reprisal. He noted that complainant's supervisors

were all female and the individuals that she claimed had harassed her

were female. He concluded that the claim of harassment or hostile

work environment based on sex was not proven by a preponderance of

the evidence.

With respect to complainant's allegation concerning her performance

appraisal, the AJ found that complainant had presented no evidence that

her supervisor was motivated by a desire to retaliate against her.

With respect to her allegation regarding her not being given proper

instructions, the AJ found that although the agency may have been

negligent in providing proper instructions on medication refills,

ordering of lab reports and x-rays, it did not act intentionally in

retaliation for complainant's previous EEO activity.

Concerning complainant's allegation that the agency failed to upgrade

her, the AJ found that complainant did revise her job description with

the understanding that a grade increase might result but did not occur.

He noted that she had not proved that she had an increase of duties,

that she had properly requested a grade increase or why she would have

a legitimate expectation that she should have her grade increased.

He concluded that there was no evidence presented that she was entitled

to a grade increase and that she had not suffered an adverse action.

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 based on race, sex or age should be

examined under the three-part analysis first enunciated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to

prevail, 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. 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. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). Once the agency has articulated such a reason,

the question becomes whether the proffered explanation was the true

reason for the agency's action, or merely a pretext for discrimination.

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although

the burden of production may shift, the burden of persuasion, by a

preponderance of the evidence, remains at all times on complainant.

Burdine, 450 U.S. at 256.

Assuming, arguendo, that complainant established a prima facie case of

race, sex and age discrimination, the agency has articulated legitimate,

nondiscriminatory reasons for rescinding some of the complainant's

clinical privileges. The Chief Nurse stated that she determined that

complainant and her co-worker did not meet the agency's criteria

for writing and renewing prescriptions which required graduation

from a baccalaureate or a higher degree nursing program. The record

revealed that neither complainant nor her African-American co-worker

graduated from a baccalaureate or a higher degree nursing program.

She stated that she recommended the rescission of the complainant's and

the co-workers privileges to the hospital's Credentials Committee and

the Commander of the hospital. She stated that the Commander approved

the Credentials Committee's decision to rescind some of complainant's

privileges. Complainant cited a male co-worker as being similarly

situated to her and not having his privileges rescinded. However,

the record reveals that at the time her privileges were revoked,

the male co-worker was not working in the CHN Department. Finally,

we find that complainant failed to show that the agency's legitimate,

nondiscriminatory reasons were a pretext for discrimination.

Complainant is raising claims of sex-based as well as race and

age-based harassment. Title VII provides that "it shall be an unlawful

employment practice for an employer ... to discriminate against an

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's ... sex ..." 42

U.S.C. 2000e-2(a)(1). If a male employee is subjected to unwelcome

sexual conduct or comments by another male employee, such "same sex"

conduct or comments can, in certain circumstances, become harassment

"because of sex" and hence violate Title VII. See, e.g., Karlovich

v. Department of Transportation, EEOC Appeal No. 01974930 (Nov. 1, 1999)

(citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)).

However, in this "same sex," as well as in the race and age context:

the anti-discrimination statutes are not a "general civility code."

Thus, federal law does not prohibit simple teasing, offhand comments,

or isolated incidents that are not "extremely serious." Rather, the

conduct must be "so objectively offensive as to alter the 'conditions'

of the victim's employment." The conditions of employment are altered

only if the harassment culminated in a tangible employment action or

was sufficiently severe or pervasive to create a hostile work environment.

EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer

Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web

version) ("Vicarious Liability Enforcement Guidance"), at 4 [internal

notes and citations omitted].

Complainant has asserted that the agency created a "hostile work

environment." Here, complainant has made no showing that she was

harassed because of her sex, race or age. In cases such as these,

where the credibility of the relative parties is critical, we must rely

heavily upon the factual findings of the AJ. See EEO MD-110, at 9-16

Here, the AJ found that there was no evidence of any sex, race or

age harassment. After our own independent review of the record,

we can conclude that a reasonable fact finder would have reached the

same conclusion. We are bound to uphold the AJ's factual findings as to

what really transpired in this case as substantial evidence supporting

the finding of the AJ. (i.e., that there was no evidence of sex, age or

race harassment). Consequently, and after considering the law governing

this case, we are also bound to uphold the AJ's legal determination that

no illegal sex, race or age-based harassment, in the form of a hostile

work environment, was committed here.

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case

of reprisal by showing that: (1) she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

she was subjected to adverse treatment by the agency; and (4) a nexus

exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

Concerning her performance evaluation, the record reveals that in

November 2000, complainant received an award and the highest performance

rating possible. Complainant has not shown how she suffered an adverse

action from her performance evaluation or that she was retaliated against

for her previous EEO activity. Similarly, with respect to her working

conditions and job instructions, we agree with the AJ's finding that

the agency did not intentionally discriminate against complainant.

We agree with the AJ's finding that there was no evidence presented

that complainant was entitled to a grade increase and that she had not

suffered an adverse action.

After a careful review of the record, the Commission finds 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 any of the agency's

actions were in retaliation for complainant's prior EEO activity or were

motivated by discriminatory animus toward complainant's race, sex or age.

We discern no basis to disturb the AJ's decision. Therefore, after a

careful review of the record, including complainant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we affirm the agency's final order.

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

June 12, 2003

__________________

Date