01991091
03-28-2002
Joyce A. Walker, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Joyce A. Walker v. Department of Veterans Affairs
01991091
03-28-02
.
Joyce A. Walker,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01991091
Agency No. 97-1740
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. Complainant
alleged that she was discriminated against on the bases of sex (female)
and age (DOB: August 3, 1935) when:
from February 29, 1996 to the present, she was blamed for errors in
agency reports, threatened with disciplinary action, blamed for spreading
rumors about the personal relationships of her supervisor (RMO 1: male,
DOB not provided) and was told that a second-level supervisor (RMO 2:
male, DOB not provided) was �out to get� her and �wanted her head�;
on March 21, 1996, she was reassigned from the position of Program
Support Assistant/Health Benefits Advisor to Library Technician; and
additional duties were not added to her Position Description for Health
Benefits Advisor.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that during the relevant time, complainant was
employed at the agency's Medical Center in Lyons, New Jersey (facility).
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on May 23, 1996.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant had not established a
prima facie case of harassment based on sex or age because the actions
complained of were not severe enough, and that complainant had further
failed to show that the actions complained of were based on either sex
or age. The agency further found that complainant had not established
a prima facie case of discrimination when she was reassigned, because
she did not establish that she was replaced by an employee who is
either male, or younger than she is. However, the agency argued, even
assuming arguendo that complainant established a prima facie case of
discrimination, the agency articulated a legitimate, nondiscriminatory
reason for its action, namely that she was reassigned because a vacancy
existed in the library and the agency desired to place her in a less
stressful environment without the same responsibilities after complainant
had shown she was unable to handle certain aspects of her original
position. Finally, regarding the failure to upgrade complainant's
position description, the agency found that there was no evidence that
the agency's actions were because of complainant's age or sex.
On appeal, complainant contends that the agency failed to conduct a proper
investigation, that the investigation was biased, and that the outcome
was predetermined. Complainant further contends that the agency did not
address all her allegations, specifically her allegation that the agency
subjected her to harassment based on disability. In addition, for the
first time on appeal, she alleges that the agency denied her a reasonable
accommodation when it denied her request to be moved from the library back
to her former position, and that the agency's actions were an effort to
force her into retirement. The agency argues that complainant raised
the issues of disability discrimination and constructive discharge<1>
for the first time on appeal, and that the FAD was therefore correct in
failing to address these issues. The agency therefore requests that we
affirm its FAD.
Regarding complainant's claim of discrimination when she was reassigned
from the position of Program Support Assistant/Health Benefits Advisor to
Library Technician, we note that in general, such claims are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). A complainant 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 reason 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). Next, the agency must articulate a
legitimate, nondiscriminatory reason for its action(s). Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that the
agency's reason was pretextual, that is, it was not the true reason or
the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The prima facie inquiry may be dispensed with in this case, however, since
the agency has articulated legitimate and nondiscriminatory reasons for
reassigning complainant to the position of Library Technician, namely
that a vacancy existed in the library and the agency desired to place
her in a less stressful environment without the same responsibilities.
See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Roberts v. Department of the Treasury,
EEOC Appeal No. 01981908 (May 15, 2001). The burden thus returns to
the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253 (1981); Hicks, 509 U.S. 502 (1993).
Complainant has argued that pretext is shown by the fact that she was
blamed for putting the facility's budget at risk. The record shows that,
between July 1994 and December 1995, the facility organized a number of
�Health Fairs� as an outreach measure to encourage veterans to use the
agency's hospitals. The agency contends complainant failed in her duty
to properly register veterans attending the fairs, and further, that
such actions harmed the veterans, whom the agency is charged to serve,
as well as the facility, since the facility's budget is dependent on
the number of veterans served. Complainant contends that she was not
fully informed about the scope of her duties at the Health Fairs, was not
properly trained or supervised, and that blame rests with the supervising
physicians. Finally, complainant argues that pretext can be shown by
the fact that she was not afforded representation for the reassignment.
The Commission finds that, regardless of who was really at fault regarding
the registration of veterans during the Health Fairs, complainant has
not shown that the agency's reason for reassigning her to the Library
Technician position is pretext for illegal discrimination. Indeed, to
the extent complainant was blamed for failing to register the veterans,
such a fact would tend to disprove rather than prove pretext since it
would tend to indicate that she was reassigned because of perceived
failings in her job, and not because of any illegal discrimination.
In addition, complainant has failed to explain how the fact that she
was not afforded representation prior to her reassignment demonstrates
pretext. For example, she has not shown, or even alleged, that the agency
routinely afforded representation for other employees outside of her
protected classes when they were reassigned. Accordingly, complainant
has failed to satisfy her burden of showing, by a preponderance of the
evidence, that the agency's legitimate, nondiscriminatory reason is mere
pretext for illegal discrimination.
We turn next to complainant's claim of harassment when she was blamed
for errors in agency reports, threatened with disciplinary action,
blamed for spreading rumors about the personal relationships of RMO 1,
was told that RMO 2 was �out to get� her and �wanted her head,� additional
duties were not added to her Position Description for Health Benefits
Advisor, and she was reassigned to work in the Library. In considering
whether these actions, whether individually or collectively, constitute
harassment, the Commission notes that in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is
actionable if it is sufficiently severe or pervasive that it results
in an alteration of the conditions of the complainant's employment. See
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3. To establish a prima facie case of
hostile environment harassment, a complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (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. 29 C.F.R. � 1604.11.
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering, inter
alia, the nature and frequency of offensive encounters and the span of
time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);
EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050,
No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request
No. 05970077 (March 13, 1997). However, as noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the 'terms and
conditions of employment." The Court noted that such conduct �must be
both objectively and subjectively offensive, [such] that a reasonable
person would find [the work environment to be]
hostile or abusive, and . . . that the victim in fact did perceive to be
so.� Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
The Commission finds that, taking all of the incidents together, they
are insufficiently severe or pervasive to constitute a hostile work
environment. Regarding complainant being blamed for errors in agency
reports, threatened with disciplinary action, and being reassigned to
the library, we are unpersuaded that such actions constitute illegal
harassment as opposed to legitimate management actions taken after it was
discovered that complainant had failed to register veterans at the Health
Fairs. See Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 24, 1998) (Personnel actions and other common workplace occurrences
are not sufficiently severe or pervasive to constitute harassment unless
it is reasonably established that the actions were somehow abusive or
offensive, and were taken in order to harass appellant on the basis of
any of her protected classes). With regard to complainant being blamed
for spreading rumors about the personal relationships of RMO 1 and being
told that RMO 2 was �out to get� her and �wanted her head,� we note that
she has presented no evidence that the alleged harassment took the form
of unwelcome verbal or physical conduct involving her protected classes.
We note that complainant has also claimed discrimination on the basis
of disability when RMO 1 made derogatory comments concerning the fact
that one of complainant's eyes is a prosthesis. Complainant's Affidavit,
pp. 26-28. While the agency failed to investigate this claim, we find
such an action constitutes harmless error on the part of the agency
because such a claim even if proven to be true, would not indicate
that she has been subjected to harassment that was sufficiently severe
or pervasive to alter the conditions of her employment. Instead,
complainant's testimony reveals that the comment was an isolated
incident that was not repeated and was not made directly to complainant.
We therefore find that it did not create such an objectively offensive
environment as to result in a discriminatory change in the terms and
conditions of complainant's employment. See Faragher, 524 U.S. at 788;
see also Burlington Industries, 524 U.S. 742, 752; Clark County School
Dist, 532 U.S. 268.
Regarding complainant's claims of constructive discharge and a denial of
reasonable accommodation, we note that the record does not reveal that
complainant raised either claim prior to the appeal. Accordingly, we
find the FAD was correct in not addressing these issues. Complainant is
advised that if she wishes to pursue, through the EEO process, these
additional claim of discrimination, she shall initiate contact with
an EEO counselor within 15 days after the date that she receives this
decision. The Commission advises the agency that if complainant seeks
EEO counseling regarding the new claims within the above 15-day time
period, the date complainant filed the appeal statement in which she
raised these claims with the agency shall be deemed to be the date of
the initial EEO contact, unless she previously contacted a counselor
regarding these matters, in which case the earlier date would serve as
the EEO counselor contact date. Cf. Qatsha v. Department of the Navy,
EEOC Request No. 05970201 (January 16, 1998).
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 FAD.
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
_____03-28-02_____________
Date
1 There is nothing in the record to indicate that complainant either
resigned, retired, or was discharged from the agency.