0120100402
07-25-2012
Sandra T. Mohr, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sandra T. Mohr,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100402
Agency No. 200H-0542-2004104221
DECISION
On October 26, 2009, Complainant filed an appeal from the Agency's September 29, 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. 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 Secretary for the Chief of Staff at the Agency's facility in Coatesville, Pennsylvania. On October 21, 2004, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the basis of reprisal for prior protected EEO activity when:
1. from March through June 2004, management harassed witnesses to Complainant's husband's EEO complaint;
2. from June 22 through June 30, 2004, Complainant covered the duties of three other staff members while one staff member repeatedly slept on the job;
3. on August 6, 2004, Complainant's supervisor (S1) removed her authority to access his email;
4. on August 9, 2004, S1 reassigned Complainant's credentialing and privileging duties to another employee;
5. on August 9, 2004, S1 called her into his office and questioned her about her involvement in her husband's EEO case;
6. on August 10, 2004, S1 sent Complainant an email asking the same questions about her husband's EEO case which he had previously asked;
7. on September 1, 2004, management stripped Complainant of duties;
8. on September 8, 2004, S1 told Complainant that she was only allowed a half hour for lunch while other employees were allowed a full hour;
9. on September 8, 2004, her request for representation was denied; and
10. on September 8, 2004, the facility's EEO Manager offered Complainant a lateral transfer to another position.1
Complainant filed an additional formal complaint, dated February 28, 2005, alleging discrimination in reprisal for prior protected EEO activity when:
11. on November 1, 2004, management issued her a "fully successful" performance evaluation;
12. on December 16, 2004, she was found not qualified for the position of Program Analyst, GS-343-11;
13. on December 21, 2004, she was found not qualified for another vacancy for the position of Program Analyst, GS-343-11;
14. on January 21, 2005, she learned that she had not been given a performance award;
15. on February 22, 2005, management placed her on leave certification;
16. on February 16, 2005, management provided her with performance standards that included additional responsibilities equivalent to a GS-9 position despite her being a GS-8; and
17. management gave her a special contribution award in the amount of $300.00 which was lower than the $1,000.00 award she had received the previous two years.
The Agency issued a final decision, dated November 1, 2005, dismissing claims (1) - (10), for failure to state a claim, and found no discrimination with respect to claims (11) - (17). In our decision on appeal, Sandra T. Mohr v. Department of Veterans Affairs, EEOC Appeal No. 0120061015 (December 8, 2008), the Commission found that the Agency had improperly dismissed claims (1) - (10) and further found that the Agency improperly fragmented Complainant's harassment claim. Accordingly, the Commission vacated the Agency's finding of no discrimination with respect to claims (11) - (17) and remanded the entirety of Complainant's complaint to the Agency for further processing.
At the conclusion of the supplemental 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant reiterates her contention that the Agency subjected her to ongoing reprisal for her participation in her husband's EEO complaint.
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").
In the absence of direct evidence of discrimination, Complainant must satisfy 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995).
Here, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S1 states that he removed Complainant's ability to access his email because S1 was receiving sensitive information for which he believed it necessary to maintain privacy. Additionally, he stated that credentialing and privileging duties were always assigned to another employee and he was merely attempting to streamline the process. With respect to Complainant being instructed to take only a half-hour lunch break, the record reflects that it is Agency policy to allow employees a lunch break of a half-hour and that although S1 states he was often liberal in allowing employees to go over the allotted time, no employees were permitted to regularly take lunch breaks of an hour. The record shows that Complainant, like all other employees, was required to cover for co-workers when they were absent. There is no evidence to show that she was required to perform more duties than any other employee. Nor does the record contain evidence to show that S1 stripped her of her job duties. Additionally, the record reflects that the EEO Manager inquired as to whether Complainant had any interest in a lateral transfer but that Complainant stated, by email, that "although it sounds like a great opportunity, [she was] not interested in making a lateral move." Report of Investigation at 300. There is no evidence to show that the EEO Manager's offer was motivated by retaliatory animus.
As to the claims that Complainant was harassed regarding her husband's EEO complaint, we find that the record shows that on August 9 and 10, 2004, S1 attempted to clarify the type of leave Complainant would be requesting for her attendance at her husband's EEO hearing. Complainant has not shown that S1's inquiries were improper. We also find that Complainant failed to show that she was denied representation during a discussion with S1 on September 8, 2004, and failed to specify the type of representation she was requesting. Further, we note that Complainant's claim that witnesses in her husband's complaint were harassed by management fails to state a claim pursuant to 29 C.F.R. �1614.107(a)(1) as she does not have standing as she is not the aggrieved employee.
With respect to the two GS-11 Program Analyst positions Complainant was not selected for, the record reflects that as a GS-8 employee, Complainant did not meet the time-in-grade requirement to be considered for a GS-11 position. As such, she was not found qualified. Further, with respect to Complainant being placed on leave certification, the record shows that management request for medical documentation was in order for Complainant to support the 240.5 hours of sick leave she used in 2004. We find that Complainant has failed to proffer any persuasive evidence to show that she was entitled to a higher rating than the "fully successful" rating she received on November 1, 2004. Finally, we find that Complainant has not proffered evidence to show that she was required to perform duties above her grade level or that she was entitled to a performance award or larger cash incentive award than she received. Accordingly, we find that Complainant has failed to proffer any persuasive evidence to show that the Agency's articulated reasons for its actions were a pretext for retaliatory animus.
Because we find that no incidents in the complaint were motivated by retaliation, we find that Complainant has failed to show that she was subjected to a discriminatory hostile work environment.
CONCLUSION
We AFFIRM the Agency's final decision.
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
July 25, 2012
__________________
Date
1 In her formal complaint, Complainant also alleged harassment when: (1) on August 5, 2004, S1 demanded that she submit evidence that she was required to attend her husband's EEO hearing; (2) on August 20, 2004, S1 denied her request for sick leave; (3) on January 21, 2004, management threatened Complainant with being written up and spoke to her in an unprofessional manner; (4) on March 2, 2004, management intimidated her about filing a claim with the Office of Workers' Compensation Programs (OWCP); and (5) on August 6, 2004, S1 denied Complainant's request for administrative leave to attend her husband's EEO hearing. In her brief on appeal, Complainant withdrew these additional claims. Accordingly, the Commission will not address them in the instant decision.
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0120100402
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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