01A10462
06-19-2002
Zella R. Davis, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Zella R. Davis v. Department of the Army
01A10462
June 19, 2002
.
Zella R. Davis,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A10462
Agency Nos. COL-97-AR-0700-E, COL-97-AR-0994-E
Hearing Nos. 120-98-9382X, 120-98-9474X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.,<1> and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
The record reveals that, during the relevant period, complainant
was employed as a File Clerk at the agency's Troop Medical Center
facility in Virginia. On or about September 27, 1995, complainant was
counseled for improperly scheduling patients for medical treatment.
The counseling letter did not result in disciplinary action, but did
serve to emphasize the limitations on complainant's responsibilities in
the office. Complainant was again counseled on or about September 29,
1995, for making medical determinations for the treatment of patients.
The record shows that complainant denied improperly advising any patient.
Complainant contends that her tape recorder which she used to record
conversations disappeared in September or October 1995. The record
establishes that complainant's supervisor (S1: African American, black,
no disability, 41 years old, prior protected activity) believed that
complainant accused her of stealing the tape recorder. The record also
establishes that although S1 and complainant's second line supervisor
(S2: Caucasian, white, no disability, 36 years old, no prior protected
activity) had located complainant's tape recorder on October 11, 2000,
they failed to immediately notify complainant that it had been found.
As a result of the tape recorder incident, complainant was suspended for
five days for rude and defiant conduct towards S1. The suspension notice
also cited a prior letter of warning issued to complainant on April 26,
1994, for unacceptable behavior towards a supervisor.
The record also reflects that on October 5, 1995, complainant was in an
altercation with one of her co-workers. As a result of this altercation,
S2 counseled complainant and the co-worker, directed them to behave
in a professional manner, and informed them that any animosity between
co-workers would not be tolerated.
In regard to being harassed, complainant testified that her supervisors
called her at home, late in the evening, on days when she was out on
extended leave or furlough. Complainant also testified that during
these calls, her supervisors issued work site assignments, informed her
of the time for reporting to work, and/or delivered mail to her home.
Complainant also contends that S2 maintained a disciplinary file on her.
On September 25, 1996, complainant filled out a Record of Injury report
documenting an injury that had occurred on September 12, 1995, whereby
she injured her neck by looking up to retrieve medical records. As a
result, complainant was on leave from September 12 to September 18, 1995.
The note complainant submitted from her doctor contained no diagnosis,
but had a recommendation that she refrain from lifting or reaching for
one week.
Complainant filed a formal EEO complaint on October 27, 1995, alleging
that the agency had discriminated against her on the bases of race
(Caucasian), color (white), disability (neck injury, chronic pain,
fatigue), age (64), and reprisal (prior EEO activity under Title VII)
when she was more strictly scrutinized and disciplined than others and
subjected to harassment in the workplace from August 1995 to December
1995.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of
reprisal discrimination. Specifically, the AJ found that: (1) complainant
engaged in protected activity; (2) management was aware that complainant
was engaging in EEO activity because of her repeated requests to visit
the EEO office; and, (3) complainant suffered adverse treatment after
these visits to the EEO office.
The AJ also concluded that complainant established a prima facie case
of race, color and age discrimination because the similarly situated
employees, not in complainant's protected classes, were treated
differently.
The AJ further concluded that although complainant contends that she was
harassed, the evidence and testimony demonstrated that she was deeply
unhappy with her placement at the facility and that she had difficulty
getting along with her co-workers and supervisors as a result. Finally,
the AJ found that despite complainant's prima facie showing of race,
color, age and reprisal discrimination, there was no evidence that the
agency's treatment of her was based on discriminatory animus and/or
retaliatory motive.
The agency's final order implemented the AJ's decision. Other than
disagreeing with the AJ's decision, complainant makes no new contentions
on appeal. In response, the agency restates the position it took in
its FAD, and requests that we affirm its final order.
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.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
To establish a prima facie case of hostile environment harassment,
complainant must show the existence of four elements: (1) she is a member
of 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 the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Thus, assuming arguendo that complainant in an individual with a
disability and established a prima facie case of race, age, disability
and/or reprisal discrimination, the Commission finds that the agency
articulated legitimate nondiscriminatory reasons for its actions. In
reaching this conclusion, we note that the record evidence reflects that
to the extent complainant's work was more closely scrutinized and her
conduct was more harshly punished, it was because of complainant's own
actions and prior disciplinary history.
In particular, the record shows that complainant: was involved in
numerous altercations with co-workers, improperly scheduled patients
for medical treatment, improperly made medical determinations for the
treatment patients, and was rude and insubordinate with management.
The record also establishes that complainant: was habitually late
for work, gave little or no notice prior to leave requests, took
an inappropriate number of breaks during the day, failed to complete
daily assignments and changed her work schedule without prior approval.
In point of fact, the record details approximately thirty-seven incidents
where complainant's behavior required disciplinary action, counseling,
or some other administrative remedy. The complainant did not establish
that more likely than not, the agency's articulated reasons were a
pretext to mask unlawful discriminatory animus and/or retaliatory motive.
Based on the legal standards above, the Commission finds that the
credibility determinations and findings of fact of the AJ are supported
by substantial evidence. In addition, the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. Accordingly, we find no reason to disturb the AJ's
conclusion a that complainant failed to present evidence that any of the
agency's actions were neither motivated by discriminatory animus toward
complainant's race, color, age, disability or prior protected activity
or was subjected to a hostile working environment.
Therefore, after a careful review of the record, including complainant's
contentions, the agency's response and arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
decision.
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
June 19, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.