0120110454
09-07-2012
Rita M. Robertazzi, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
Rita M. Robertazzi,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120110454
Hearing No. 531-2009-00038
Agency No. HHS-NIH-0122-2008
DECISION
Complainant filed an appeal from an Agency's final order dated September 30, 2010, finding no discrimination with regard to her complaint. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
In her complaint, dated February 29, 2008, which was later amended, Complainant, a Nurse Practitioner (NP), GS-12, in the Office of Clinical Director (OCD), Intramural Research Program (IRP) at the Agency's National Institute on Drug Abuse alleged discrimination based on national origin (Italian-American), religion (Catholic), race (White), and age (over 40) when she was:
(1) Given a letter of official reprimand on October 19, 2007, for failing to return a work issued laptop computer in a timely manner;
(2) Denied her request to attend a three-day continued education conference on December 4, 2007;
(3) Given an unacceptable rating for her 2007 performance appraisal on January 17, 2008;
(4) Placed on special leave procedures on February 7, 2008; and,
(5) Subjected to a hostile work environment between December 4, 2007, and February 1, 2008, when her first-line supervisor raised her voice at her during a public meeting, grilled her with questions in an attempt to show a lack of her knowledge in the area of laboratory values interpretation, and criticized her for failing to fax an electrocardiogram (ECG) consult pursuant to her instruction.
Complainant also alleged discrimination in reprisal for prior EEO activity when:
(6) The Agency subjected her to a hostile work environment between May 6, 2008, and July 9, 2008.
The record indicates that at the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 24, 2010, the AJ, after a hearing, issued a decision finding no discrimination. On September 30, 2010, the Agency issued its final order implementing the AJ's decision.
On October 25, 2010, Complainant filed this appeal from the Agency's final order. The record indicates that on November 24, 2010, i.e., the date when the 30-day time limit to file her appeal expires, Complainant requested an extension of time to file her brief in support of her appeal. The record indicates that on December 8, 2010, the Commission granted the requested extension until December 27, 2010. On that same day, on December 8, 2010, Complainant requested another extension. Again, on December 14, 2010, the Commission granted the second extension until January 7, 2011. Complainant did not file her brief until January 25, 2011. The Agency states that Complainant's appeal brief is untimely.
ANALYSIS AND FINDINGS
Initially, we note that on two occasions, Complainant was granted an extension of time to file her appeal brief, i.e., until December 27, 2010, and again until January 7, 2011. However, Complainant did not file her appeal brief until January 25, 2011, which was beyond the extended time limit. Complainant fails to provide any justification for filing of her brief in an untimely manner. Thus, we will not consider Complainant's untimely filed appeal brief in this case. 29 C.F.R. �1614.403(d). Even if the brief were timely, our ultimate decision finding no discrimination would not change.
Turning to the alleged claims, 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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. The AJ noted that Complainant's prior NP position within Occupational Health Service was eliminated, due to the Agency's reorganization, and she was subsequently transferred to her position within the OCD on January 7, 2007. The AJ also noted that as part of this transfer, Complainant was expected to work alongside and assume the same duties as the existing team of a mid-level provider (MLP) that worked within the IRP.
With regard to claim (1), Complainant's supervisor stated that on September 20, 2007, she notified Complainant to return her work-issued laptop. When Complainant failed to do so, the supervisor again requested the same on September 25, 2007. Complainant did not return the laptop until September 27, 2007. Complainant does not dispute this. The supervisor stated that due to this incident, she issued Complainant the letter of official reprimand.
With regard to claim (2), the supervisor indicated that during the relevant time period, Complainant requested to use her continuing education hours to attend the upcoming Pri-Med conference. The supervisor stated that she did not deny the request; rather she informed Complainant that since the conference lasted three full days and she only had eight hours of continuing education hours remaining for the year, she could attend either one of the three days of the conference or the full conference and use annual leave for two days. The supervisor stated that Complainant chose to attend one day of the conference.
With regard to claim (3), the AJ noted that Complainant previously received her mid-year progress review with "minimally successful" rating on June 26, 2007. The AJ stated that Complainant had at least five documented performance issues between September 20, 2007, and January 8, 2008, i.e., her October 19, 2007 letter of reprimand; misdiagnosing a research participant's medical test results by informing him that he had syphilis when he in fact did not; her inability to assess a participant's tachycardia which was a very basic medical condition; her uncooperative exchange with a nurse; and, her delayed receipt of participants. The AJ noted that based on Complainant's failure to meet expectations of her performance requirements, the supervisor issued Complainant her "unacceptable" rating.
With regard to claim (4), the AJ noted that on June 7, 2007, the supervisor previously issued a "Time and Attendance Procedures" memo to all MLPs, including Complainant. Therein, Complainant was clearly informed to: maintain the same arrival and departure time for the work; notify the supervisor if she arrived to work more than fifteen minutes late or left early; make leave requests at least three days in advance; and contact the supervisor directly in case of emergency leave. Complainant was further informed that her failure to follow the foregoing requirements could result in a modification to her time and attendance procedure. The AJ noted that Complainant's proposed schedule listed a Monday through Friday workweek with hours from 8:30 am and 5:00 pm every day. The supervisor stated that she placed Complainant on special leave procedures because on January 23, 2008, she came to work late and left early without taking leave, as well as taking an extended lunch without taking leave or notifying the proper supervisors. Complainant does not contest this.
With regard to claim (5), the supervisor denied raising her voice, grilling, or criticizing Complainant as she alleged. The AJ stated that the two of the three incidents cited by Complainant occurred during the same meeting and there was evidence that the incident involving the criticism for failing to properly fax an electrocardiogram document was actually an error on Complainant's part. The AJ noted that Complainant's supervisor had non-hostile inquiries and exchanges with other MLPs, as well as Complainant, concerning their work. The AJ further noted that none of the incidents cited by Complainant led to any written disciplinary action and were not included on her performance reviews. The AJ determined that the incidents were isolated and were not pervasive enough to lead to a finding of a hostile work environment.
With regard to claim (6), the supervisor stated that despite Complainant's claim, she did reply to her first electronic questions, but did not reply thereafter since she asked the same matters. The supervisor also stated that Complainant was placed on the Performance Improvement Plan on April 17, 2008, due to her unacceptable work performance, described above. The supervisor indicated that Complainant was required to take 15 minutes leave on April 21, 2008, because she was required to take personal leave in 15-minute increments if she was late to work. On May 6, 2008, Complainant did not follow the proper protocols when she did not check the abnormal lab values first thing in the morning. The supervisor indicated that Complainant was issued the notice of proposed removal on July 9, 2008, because her performance did not improve and there was no evidence of future improvement.
The AJ stated that Complainant failed to show by a preponderance of the evidence that the Agency's foregoing proffered reasons were pretextual. Upon review, we find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances with regard to the alleged incidents. We also find that the AJ's factual findings of no discriminatory intent are supported by substantial evidence in the record.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
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
9/7/12
__________________
Date
2
0120110454
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110454