Millie Wheat, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 8, 2006
01a50948 (E.E.O.C. Mar. 8, 2006)

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