01a52181
05-31-2005
Linda D. Starkey, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Linda D. Starkey v. Department of Veterans Affairs
01A52181
May 31, 2005
.
Linda D. Starkey,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52181
Agency No. 2004-0512-2003101532
Hearing No. 120-2004-00294X
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. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Fee Basis Clerk, in Baltimore,
MD, filed a formal EEO complaint on March 24, 2003, alleging that the
agency discriminated against her on the basis of reprisal for prior EEO
activity (arising under Title VII) when:
complainant was subjected to a hostile work environment as evidenced
by the
following events:
a. on February 20, 2003, complainant's supervisor informed her that
she was going to be rated unsatisfactory for the period from
November 2002 through March 2003;
b. on February 20, 2003, complainant's supervisor informed her that
the office was relocating to [Veterans
Affairs] VA Medical Center;
c. on February 20, 2003, complainant learned that other employees
received quality step increases and
she did not;
d. on February 3, 2003, complainant was told by her supervisor not to
converse with others because the work was not being performed;
e. on January 23, 2003, complainant received a letter of counseling
because the chief of Fee Basis misplaced
246 claims;
f. on January 23, 2003, complainant alleged that she and two of her
co-workers were called into their supervisors office and told not
to wear earphones to their radios because they were not performing
their duties;
g. on January 9, 2003, complainant's supervisor informed her that
she did not
know how to perform her job; and
h. on December 3, 2002, complainant was given a memo by her supervisor
that
stated that her productivity was very low and a higher productivity
was expected.
Complainant also alleged that she was subjected to unlawful discrimination
based upon reprisal for prior EEO activity when:
(2) she was discriminated against regarding her time and attendance
as evidenced by the following events:
a. on February 20, 2003, complainant arrived to work late and was
charged 3.5 hours of Leave without Pay (LWOP);
b. on February 7 and 18, 2003, complainant was charged with annual
leave due to inclement weather and the
Federal Building being closed;
c. on January 14, 15, and 16, 2003, complainant's leave request was
disapproved by her supervisor; and
d. on January 24, 2003, complainant was charged 1.5 hours of absence
without
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, an AJ issued a decision on December 3,
2004, finding no discrimination.
With respect to claim (1), the AJ initially concluded that actions (a)
through (h) failed to state an actionable claim of harassment. The AJ
then concluded on the merits that complainant failed to establish a prima
facie case of harassment based on reprisal because she has not shown
any causal nexus between the harassment and her protected group status.
He also found that actions (a) through (h) were not severe or pervasive
as to create an intolerable hostile work environment. Regarding claim
(2), the AJ found that there were some adverse actions but could not
find that these actions were linked to complainant's prior EEO activity.
Further, the AJ concluded that the agency had established legitimate,
nondiscriminatory reasons for their actions because complainant's
work habits were the cause of the agency's discipline and scrutiny.
The agency's final order implemented the AJ's decision. On appeal,
complainant restates arguments previously made at the hearing and argues
that the AJ and agency's decision erred in concluding that there was no
discrimination based on reprisal.
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.
Claim 1
Harassment Based on Prior EEO Activity
In order to establish a claim of harassment based on prior EEO activity,
complainant must show that: (1) she engaged in prior EEO activity; (2)
she was subjected to unwelcome conduct; (3) the harassment complained of
was based on her prior EEO activity; (4) the harassment had the purpose
or effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment, and
(5) there is a basis for imputing liability on the agency. See McCleod
v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In the instant
case, we note that complainant engaged in prior EEO activity arising
from filing a claim of harassment and the failure to receive training.
She later withdrew this complaint. However, we find that substantial
evidence supports the AJ's determination. Complainant has not shown that
she was retaliated against because of her prior EEO activity. Further,
we agree with the agency that complainant has failed to establish that
she has been subjected to any differential treatment based upon her prior
EEO activity, other than �her belief that this was the case.� It is well
settled that subjective belief, however genuine, does not constitute
evidence of pretext or provide a basis for remedial relief. See Mroz
v. Dep't of Defense, EEOC Appeal No.01A33187 (Jan. 23, 2004).
Claim 2
Generally, claims of disparate treatment are examined under the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). However, 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 where the complainant must prove by
a preponderance of the evidence that the agency's explanation is pretext
for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department
of the Navy, EEOC Request No. 05950351 (December 14, 1995).
With regard to claim (2), we agree with the AJ that the agency has
provided sufficient legitimate, nondiscriminatory reasons for their
actions regarding complainant's time and attendance. For example, the
agency explained that complainant was frequently absent and away from
her workstation, and she was charged with leave without pay because she
failed to provide a reason for being late. According to the agency's
leave policy, charges of leave without pay and absence without leave were
reserved for employees who abused their leave. Any Fee Service employees
who did not report to the hospital for duty were charged leave. The AJ
concluded that complainant's work habits were the cause of the agency's
scrutiny and discipline. Complainant has not provided any evidence that
the agency's actions were pretextual. We find therefore that the agency
did not discriminate against complainant based on reprisal for her prior
EEO activity.
Accordingly, the Commission finds that the AJ's findings of fact are
supported by substantial evidence in the record. We conclude that
complainant failed to present evidence that any of the agency's actions
were in retaliation for complainant's prior EEO activity. We also
conclude that the evidence of the record is insufficient to establish
pretext and that the agency presented legitimate nondiscriminatory
reasons for its actions. 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
May 31, 2005
__________________
Date