0120091399
04-24-2009
Alexandra P. Masterson, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Alexandra P. Masterson,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091399
Agency No. ARBELVOIR07DEC4894
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 29, 2008 final decision concerning her equal employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Clinical Pharmacist, GS-0660-12, at the agency's DeWitt Army Community Hospital in Fort Belvoir, Virginia.
On February 20, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of race (Caucasian) and age (52) when:
a. on November 20, 2007, she was issued her 2007 performance appraisal with an overall rating of level 2 (needs improvement) and which containing inaccurate and negative remarks;
b. she was singled out for harassment and counseling and was treated less favorably than her co-workers when she made errors or did not complete work within prescribed timelines; and
c. she was treated negatively and less favorably than her co-workers and was belittled and not treated as a valuable member of the staff in front of her co-workers.
At the conclusion of the investigation, complainant was provided 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 on December 29, 2008, pursuant to 29 C.F.R. � 1614.110(b).
In its December 29, 2008 final decision, the agency found no discrimination. The agency determined that complainant did not establish a prima facie case of race and age discrimination. The agency further found that assuming, arguendo, complainant established a prima facie case of race and age discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
With respect to complainant's harassment claim, the agency found that the evidence in the record did not establish that complainant was subjected to harassment based on race and age. Specifically, the agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim a, complainant's second-level supervisor (S2) stated that she was the senior rater concerning complainant's 2007 performance appraisal. S2 stated that complainant's first-level (S1) checked with the personnel office to determine if the documentation pertaining complainant's performance deficiencies was sufficient to justify the "needs improvement" rating. Specifically, S2 stated that during the relevant period, there were "actually several discussions ongoing, from before the rating was given to after. And she initially brought it to me in October of 2007. I had recommended to her that she gets CPAC advice regarding whether the documentation we had was sufficient." S2 stated that S1 told her that personnel advised her that the documentation was sufficient. S2 further stated that complainant's rating was justified because of "the inefficiencies on more than one occasion." S2 stated that complainant presented incorrect information at Formulary Strategy Committee (FSC) meetings and her AHLTA documentation was not completed in a timely manner.
S2 stated that in regard to FSC meetings, complainant was responsible for putting together the presentation. S2 stated that she chairs the FSC meetings and when complainant presented incorrect information, it was necessary to stop the June 2007 meeting and not make determinations based on the inaccurate information. S2 stated that as a Chair, it was her job "at the meeting, to present, review the information. We use that information to make decisions regarding what medication is carried at the hospital. So when I noticed it was inaccurate information, we had to stop the meeting and not make decisions based on inaccurate information. And reschedule the meeting for that discussion for a later time." S2 stated that one of complainant's presentation concerning inpatient intravenous antibiotics was "riddled with inaccuracies." S2 stated that complainant's incorrect information "was delaying our ability to adequately care for our patients." Furthermore, S2 stated that the incorrect information was presented on at least two occasions during the rating period.
S2 stated that in regard to complainant's midyear review, she was not privy to being at the review but she "received the support form for my signature and dating that had indicated the midyear review."
S2 acknowledged that most employees were deficient in meeting the requirement to complete AHLTA notes within 24 hours. Specifically, S2 stated that the employees "all had problems with their AHLTA notes. They all received counseling regarding their AHLTA notes. In my opinion, the others improved significantly." S2 stated that there was a 90% compliance requirement by the end of the rating period. S2 stated that the identified co-worker (C1) that complainant compared herself to, showed significant improvement by the end of the rating period and was meeting the requirement. S2 stated that while C1 was submitted her AHLTA notes in a timely manner about 90% of the time, complainant's rate of timely submission of AHLTA notes was 77%. S2 stated that complainant was made aware of the additional training available to help her improve her AHLTA notes.
Regarding claim b, S2 denied subjecting complainant to harassment and treating her less favorably than her co-workers. S2 acknowledged that complainant received increased increase attention and counseling in direct relationship to her performance deficiencies. Specifically, S2 stated that complainant "has multiple performance issues over a period of time. By having those performance issues, she receives either increased attention or increased counselings as a direct relation to the performance issues." S2 stated that she was unaware that complainant felt she was being harassed.
Regarding claim c, S2 denied treating complainant negatively and less favorably than her co-workers. S2 stated that she was not aware that complainant felt that she was not being treated as a valuable member of the pharmacy staff during the relevant time. S2 stated that complainant's co-workers "did not have the significant performance issues that [Complainant] had during that time."
With respect to complainant's allegation that S2 belittled by management in front of her co-workers, S2 stated "not that I was aware of. At the pre-meetings to this, to this meeting, [Complainant] expressed those , to me. Had not been expressed prior to that. And as a result of that, we took steps to ensure that she felt included and an important part."
On appeal, complainant argues that the final agency decision was based on an incomplete investigative record. For example, complainant specifically argues that the agency investigation failed to collect any documents referred to in complainant's appraisal upon which agency officials may have relied to support the performance rating, with regard to purportedly delayed AHLTA notes or purportedly incorrect information presented at meetings. Complainant further argues that even with a investigative record she deems inadequate, she nonetheless established discrimination. Complainant argues that each of the articulated reasons identified by the agency are pretexts to masks race and age discrimination.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See 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. See 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. See 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
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 severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally 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 of 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, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment. Moreover contrary to complainant's assertions on appeal, the Commission determines that the EEO investigation was adequate. Furthermore, even assuming many of complainant's assertions on appeal, the Commission does not find sufficient evidence to prove discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 24, 2009
__________________
Date
2
0120091399
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013