01a50948
03-08-2006
Millie Wheat, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Millie Wheat v. Department of Veterans Affairs
01A50948
03-08-06
.
Millie Wheat,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A50948
Agency No. 200I-0521-2004100191
DECISION
INTRODUCTION
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
and/or harassed complainant on the bases of her race (African-American)
and sex (female) when:
(1) on or about September 23, 2003, her supervisors (S-1 and S-2 or
management) informed her that she was being assigned new duties on a
temporary basis, specifically, assisting in transporting specimens from
the Emergency Room and the Specimen Collection Area to the Laboratory
Processing Area; and
(2) on or about October 28, 2003 and November 4, 2003, her supervisors
required her to provide additional medical documentation before excusing
her from her specimen processing duties, creating stress and a hostile
work environment.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a File Clerk, GS-3, at the VA Medical Center in Birmingham, Alabama.
In mid-September 2003, management requested that complainant volunteer
for a temporary detail transporting specimens. Complainant declined
because she believed that her job description did not include such duties.
On September 29, 2003, management issued complainant a memorandum, which
placed her on a detail transporting specimens, not to exceed thirty days.
Complainant maintained that two other File Clerks (African-American, male;
African-American, female) (comparators) could have performed the duties.
Complainant further asserted that she found management's conduct angry
and threatening.
According to management, the assignment was necessary due to equipment
failure and urgent patient care needs. S-1 testified that, due to
changes made in the radiology file room, complainant possessed time to
perform the new duties, and that the detail was for thirty days due to
the estimated equipment repair time given by the Engineering Service.
S-2 averred that complainant's position description included delivering
items throughout the hospital.
Complainant provided management with two notes from her physician, written
on prescription paper and dated October 10 and 15, 2003. Her physician
stated in both notes that complainant �has coronary heart disease and a
severe phobia about body fluids.� The physician requested that the agency
excuse complainant from the detail duties. By letter dated October 28,
2003, the agency requested clarification of complainant's condition,
including, among other things, history of the medical condition, clinical
findings, diagnosis, and explanation of need for duty restrictions.
On November 4, 2003, complainant's physician submitted a brief letter,
stating that �to insist that [complainant] perform these duties is truly
against her health and could cause immeasurable harm.� Based upon the
November 4th letter, management removed the specimen transporting duties
from complainant.
Complainant filed a formal complaint regarding the above-described claims.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
Complainant requested a hearing; however, the AJ assigned to the matter
dismissed complainant's hearing request for failure to respond to the
Acknowledgment Order and remanded the complaint file to the agency for
a final decision.
In its FAD, the agency concluded that complainant failed to establish
by a preponderance of the evidence that the agency discriminated against
her as alleged. The agency found that complainant failed to establish a
prima facie case of race or sex discrimination. It then assumed arguendo
that complainant had established a prima facie case of discrimination,
but determined that management articulated legitimate nondiscriminatory
reasons for its actions that complainant failed to show were pretextual.
On appeal, complainant contends that S-1 and S-2 have forced odd jobs
and menial labor on her. Moreover, she states that she has not been
considered for a promotion since she began working in the department.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). For complainant
to prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, that is, 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 met
its burden, the complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the agency acted
on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. 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, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
Assuming for the sake of argument that complainant did establish a
prima facie case of race and/or sex discrimination, the burden shifts
to the agency to articulate a legitimate, nondiscriminatory reason for
its action. McDonnell Douglas, 411 U.S. at 802-04. The record reveals
that management provided testimony that: (1) the specimen transport system
malfunctioned and management needed to transport specimens, leading to
the agency's need to detail complainant to perform transport duties;
(2) complainant's job description included the duty of delivering and
retrieving items at the facility; and (3) management rescinded the
assignment of specimen transport once complainant's physician provided
adequate documentation regarding complainant's medical condition.
Since the agency articulated legitimate, nondiscriminatory reasons
for its action, the burden returns to complainant to demonstrate that
the agency's articulated reasons were pretext for discrimination.
Complainant identifies two comparators that she asserts could have
been detailed to the transport duties. We note, however, that the two
comparators she identifies are members of her protected classes, and
therefore do not advance her argument of discrimination based upon race
or sex. On appeal, complainant also maintains that she has not been
considered for a promotion since she began working in the department.
This claim was not previously raised as part of the present complaint,
and therefore, it is inappropriate for her to raise this new claim for the
first time as part of the current appeal. See Hubbard v. Department of
Homeland Security, EEOC Appeal No. 01A40449 (April 22, 2004). Therefore,
the Commission will not address it herein. Based upon a review of the
record, the Commission finds that complainant has failed to present any
evidence that the agency discriminated against her on the bases of race
and/or sex.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability or religion is unlawful
if it is sufficiently patterned or pervasive. Garretson v. Department
of Veterans Affairs, EEOC Appeal No. 01945351 (April 4, 1996); McKinney
v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). The Commission's
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) identifies two
types of such harassment: (1) harassment that results in a tangible
employment action; and (2) harassment that creates a hostile work
environment. Although being temporarily assigned to other duties could
be considered a tangible employment action, we will analyze the present
complaint as an allegation of harassment that creates a hostile work
environment because complainant maintains that S-1 and S-2's harassment
began when they forced her to take the temporary detail, submit additional
medical documentation, and perform odd jobs and menial labor.
In order for harassment to be considered as conduct in violation of the
regulations that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes
that unless the conduct is very severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
In the present case, the Commission finds that complainant has not
established that she was harassed on the bases of her race and/or sex.
There is no indication that a discriminatory animus based on race
and/or sex was the motivation behind S-1 and S-2's decision to detail
complainant to the transport duties, or to request that she perform
other tasks. Finally, we note that in cases where there is ambiguity
regarding medical restrictions, the employer may ask the individual
for reasonable documentation about his/her disability and functional
limitations. EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, Notice
No. 915.02, Question 6 (October 17, 2002). For the foregoing reasons,
the Commission finds that complainant has failed to prove that she was
harassed and subjected to a hostile work environment as alleged.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, 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
______03-08-06____________
Date