0120072422
03-20-2009
Angela R. Dawson-Lee, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Angela R. Dawson-Lee,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120072422
Agency No. ARJACKSON05MAY08601
Hearing No. 430-2006-00067X
DECISION
Complainant filed an appeal with this Commission from the March 20, 2007
agency decision which implemented the decision of the EEOC Administrative
Judge (AJ) who, after a hearing, found no discrimination.
Complaint alleges 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Specifically, complainant,
a registered psychiatric nurse, alleged that the agency discriminated
against her on the bases of sex (female), religion (nondenominational),
and disability, when the agency subjected her to harassment.1
In her decision, the AJ found that complainant failed to establish that
she had an impairment which substantially limited any major life activity.
The AJ noted that while the record established that complainant could
not lift more than 50 pounds or participate in "takedown" procedures,
complainant had provided very little information about her medical
condition at the hearing. The AJ also found that the limited testimony
which complainant provided did not establish that the shoulder limitation
that complainant described was restricting her ability to perform
a major life activity. The AJ concluded that those circumstances,
combined with the lack of supporting medical evidence and complainant's
lack of credibility, were insufficient to establish that complainant
was an individual with a disability.
Regarding her harassment claim, the AJ found that while complainant had
shown that she was a member of the protected groups of religion and sex,
she failed to establish that she was subjected to harassment in the form
of unwelcome verbal or physical conduct. Regarding not being allowed
to take the same breaks as male psychiatric technicians, the AJ noted
the testimony of complainant's supervisor, the head nurse at Seven West
Inpatient Psychiatry, that there was a written policy requiring that a
registered nurse be present on the floor at all times and if complainant
needed a break, she could call another unit to provide coverage.
The AJ noted that the male psychiatric technicians were not similarly
situated to complainant. Regarding complainant's claim of religious
discrimination, the AJ noted that complainant was "strangely silent"
regarding the claim at the hearing and the overwhelming testimony of
record was that as soon as complainant complained about the posting
of religious materials in the workplace, the materials were removed.
Regarding complainant's supervisor's failing to complete the workers'
compensation form for complainant the AJ noted that it was not completed
because it was not the proper form. The AJ found also that it was
not complainant's supervisor but the agency's workers' compensation
administrator who had called complainant's physician for information
about her workers' compensation claim and her work status. The AJ also
found that when the agency called complainant on April 3, 2005, because
complainant had reported sick on April 2, the agency wanted to know
if complainant would be reporting on April 3, because another nurse had
called in sick on April 3. The AJ also found that complainant was required
to undergo re-orientation when she returned to employment in July 2005,
because she was a new employee who was away from work for several months.
Regarding complainant's lack of credibility, the AJ noted that complainant
was less than responsive to questions asked on cross-examination and
other witnesses who recounted their own issues with complainant's lack
of veracity. The AJ found the testimony of complainant's supervisor
forthright. The AJ also concluded that what complainant perceived as
harassment was her supervisor doing what a supervisor properly does in
a supervisor's job.
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 is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). To establish a prima facie case of harassment, complainant must
show that: (1) complainant is a member of a statutorily protected class
and/or was engaged in prior EEO activity; (2) complainant was subjected
to unwelcome verbal or physical conduct related to her membership in that
class and/or her prior EEO activity; (3) the harassment complained of
was based on her membership in that class and/or her prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to 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).
Assuming without deciding that complainant has established a prima
facie case as to each basis and also assuming, without deciding that
complainant is a person with a disability, the AJ's ultimate finding that
unlawful employment discrimination was not proven by a preponderance of
the evidence is supported by the record. Complainant failed to show that
the agency subjected complainant to discriminatory harassment. Moreover,
the agency has articulated legitimate, nondiscriminatory reasons for
its actions. The record does not support a finding that any agency
action was motivated by discriminatory animus. The AJ's decision is
supported by substantial evidence.
The agency's finding of no discrimination is AFFIRMED.
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
March 20, 2009
__________________
Date
1 The AJ noted at the onset of the hearing that complainant's termination
during her probationary period was not a claim before her.
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0120072422
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013