0120100429
07-27-2012
Marcia B. Doliveira, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Marcia B. Doliveira,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100429
Agency No. 200I-0546-2008104182
DECISION
On October 26, 2009, Complainant filed an appeal from the Agency's September 23, 2009, final decision 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Agency's Medical Center in Miami, Florida. On December 1, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic) and reprisal for prior protected EEO activity when:
1. on July 1, 2008, her nurse manager charged her with 15 minutes annual leave for being "three minutes late;"
2. on December 30, 2008, her supervisor denied her request to take annual leave on New Year's Eve;
3. On July 18, 2008, her supervisor cancelled her previously scheduled training;
4. on December 29, 2008, her supervisor denied her training request for the week of January 13-16, 2009;
5. when, or about August 7, 2008, her supervisor notified her that her schedule would change and she would begin working the day shift, effective September 3, 2008;
6. by Memorandum, dated September 2, 2008, she was placed on a Performance Improvement Plan (PIP), effective September 3, 2008; and
7. on December 29, 2008, her supervisor issued her a proficiency report (for the period February, 2008 through February, 2009) approximately two months early.
Additionally, Complainant alleged she was subjected to a hostile work environment based on national origin (Hispanic) and reprisal (prior EEO activity), in regards to claims 1-7 and the following incidents:
8. on or about November 27, 2007, her supervisor "wrote up a report" about her actions (and those of a co-worker) regarding patient smoke breaks;
9. at the end of 2007, her supervisor pointed a finger in her face;
10. on June, 2008, her supervisor told her that she would be monitoring her internet usage;
11. on June 20, 2008, a co-worker in the office displayed "physical aggression" towards her;
12. on June 25, 2008, her supervisor told her that "nobody liked working with' her;
13. on June 25, 2008, her supervisor informed her that she could no longer be put in charge of her shift;
14. on June 28, 2008, her supervisor cancelled her previously scheduled overtime;
15. on July 10, 2008, her supervisor told her that her heels did not conform to the facility's dress code;
16. during a meeting on December 15, 2008,her supervisor accused her of having "an unprofessional relationship" with a subordinate employee.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
With regard to Complainant's allegation of harassment involving claims 1 through 16, the Agency found that Complainant failed to show that the alleged incidents were sufficiently severe or pervasive, even assuming they occurred as alleged. The Agency determined that Complainant failed to present any concrete evidence of unwelcome personal slurs or other denigrating or insulting verbal or physical conduct that was direct to her based on her protected classes. The Agency also found that Complainant's allegation of harassment consists "primarily of her dissatisfaction with managements' job-related actions." FAD at 10. According to the Agency, her belief that managements' actions [were based on discriminatory animus] does not transform those actions into harassment." Id.
The Agency further analyzed the remaining claims under the theory of disparate treatment. With regard to each claim, the Agency determined that although Complainant established a prima facie case with some of the claims, the Agency articulated legitimate, nondiscriminatory reasons for each of its actions.
With regard to claim 1, the Agency found that the Nurse Manager, who is Complainant's immediate supervisor (S1), denied that she charged Complainant with 15 minutes leave on July 1, 2008. The Chief Nurse (CN) corroborated S1's statement.
With regard to claim 2, S1 stated that Complainant provided her with a leave request on December 30, 2007, requesting leave for December 31, 2007. S1 testified that she denied Complainant's request, because it was a holiday, the request was submitted on short notice, and S1 had concerns with meeting staffing needs. S1 testified that another co-worker was granted leave for December 31, 2007, because she had requested it in advance. The CN corroborated S1's testimony, noting that the unit was short staffed because of medical leave granted to another employee.
With regard to claim 3, S1 testified that she cancelled Complainant's training scheduled for July 18, 2008 because of staffing needs. S1 admitted that she relieved Complainant of her Charge Nurse responsibilities and denied Complainant's overtime until an investigation involving a co-worker was concluded. S1 consulted with Human Resources Office with regard to these decisions. The CN states that Training is held several times a month throughout the year, and therefore, the denial of training was not particularly inconvenient for Complainant.
With regard to claim 4, the Agency found that Complainant did not formally request the training, but rather, she verbally requested training on December 9, 2007. S1 states that Complainant and a Caucasian nurse both requested "drawing blood" training. S1 testifies that she denied both requests, because S1 could not justify the overtime for the training when their unit did not draw blood. The CN concurred with S1's testimony, explaining that management had to be careful with schedule charges, because they already had another employee out on emergency medical leave.
With regard to claims 5 and 6, S1 testifies that an incident occurred between Complainant and a coworker. As a result, a fact-finding investigation was conducted. After that investigation, it was determined that Complainant needed to be placed on a PIP due to her performance. Accordingly, Complainant was switched to the day shift until the PIP was completed. The CN testified that Complainant exhibited leadership deficiencies predicating the PIP and it was normal practice to place employees on the day shift for appropriate PIP supervision.
With regard to claim 7, S1 testified that an employee's proficiency report is normally submitted to Human Resources two weeks prior to the due date, which was February, 2009. However, she was also allowed to submit the proficiency report 30 days in advance of the deadline. S1 denies giving Complainant a lower rating, stating she gave Complainant a "satisfactory" rating, which is the same rating Complainant received the previous rating year. The CN testified that S1 acted appropriately in making the effort to comply with reporting requirements.
Turning to Complainant's burden to prove that the Agency's proffered reasons were a pretext for discrimination, the Agency found that Complainant failed to do so. The Agency determined that Complainant "failed to present any evidence, other than her own unsubstantiated beliefs and assertions" that the Agency was motivated by discriminatory animus. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed an appeal with the Commission. Complainant makes no arguments on appeal. The Agency requests that we affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Disparate Treatment
Complainant alleged disparate treatment discrimination based on his race, sex, age, disability, and prior EEO activity. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming arguendo that Complainant established a prima facie case of discrimination based on national origin and prior EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We find that nothing in the record demonstrates that the Agency's reasons are not worthy of credence. We further find that there is nothing in the record to show that the Agency's proffered reasons for its actions are a pretext for discrimination.
Harassment/Hostile Work Environment Claim
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. U. S. Postal Serv., 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. (Enforcement Guidance on Harris ), at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance on Harris at 6. The Supreme Court has stated that "conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, 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 his 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris at 6.
Here, Complainant asserted that based on her statutorily protected classes, management continuously subjected her to a hostile work environment. We find, however, that Complainant has not shown that she was subjected to a hostile work environment. Complainant has cited numerous incidents where Agency management took actions that appeared to be adverse to her; however, the Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to establish that a hostile work environment occurred. In addition, the Commission finds that Complainant failed to show that any of these incidents were unlawfully motivated by discriminatory or retaliatory animus. While the record suggests that Complainant and her coworker had a contentious work relationship, the Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination or harassment occurred as alleged.
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
__7/27/12________________
Date
1 We note the Agency also dismissed the following claims: (A1) on or about November 27, 2007, Complainant's nurse manager "wrote up a report" about Complainant; and (A2) on June 28, 2008, her nurse manager cancelled Complainant's previously scheduled overtime. Because Complainant did not challenge these dismissals on appeal, we decline to address them in this decision. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November 9, 1999).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120100429
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100429