01995657DeChesser
04-04-2002
Arlene DeChesser, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Arlene DeChesser v. Department of Veterans Affairs
01995657
April 4, 2002
.
Arlene DeChesser,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995657
Agency No. 95-1370
Hearing No. 160-95-8375X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 time, complainant was employed
as a Nurse Manager of Ambulatory Care at the agency's Veterans Affairs
(VA) Medical Center, Newington, Connecticut, facility. Complainant
sought EEO counseling and subsequently filed a formal complaint on March
22, 1995, alleging that she was discriminated against on the bases
of disability (heart), age ( 51), and reprisal (prior EEO activity)
when: (1) she was reassigned to a Nurse Practitioner position in the
Evaluation Treatment Unit (ETU); (2) given a lower proficiency report
dated August 12, 1994; (3) denied reasonable accommodation; and (4)
subjected to harassment.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge (AJ)
or alternatively to receive a final decision by the agency. Complainant
initially requested a hearing before an AJ, but subsequently withdrew
the request, and requested that the agency issue a final decision.
Complainant has worked in a managerial capacity in the Nursing Service
at the agency's Newington facility for over 24 years. During the time
complainant was the Nurse Manager of Ambulatory Care, she also worked
two mornings a week in the facility's cardiac clinic. Complainant is
an Advance Practical Registered Nurse, has a Masters degree in Public
Health, and is a Nurse Practitioner. The Deputy Chief, Nursing Service,
the Responsible Management Official (RMO), complainant's second-line
supervisor, decreased complainant's duties over a four year period
culminating in complainant's permanent reassignment to a Nurse
Practitioner position in the ETU.
In its FAD, the agency found that complainant failed to establish a prima
facie case of age or disability discrimination, including harassment.
However, the FAD found that complainant established a prima facie case of
reprisal, but that the agency articulated legitimate non-discriminatory
reasons for its actions, and that the complainant failed to show pretext.
The complainant, on appeal, argues that the agency's initial
investigation was untimely and inadequate, and that, as a result, the
agency should be ordered to pay her discovery costs. She also emphasizes
that the agency's supplemental investigation was untimely, improper,
and inadequate. Complainant thus contends that the inadequacies and
untimeliness of both the initial and the supplemental investigations
warrant: (1) the imposition of an adverse inference; (2) a determination
that the matters to which the information or testimony pertains shall be
established in complainant's favor; and (3) the issuance of a decision
fully or partially in complainant's favor. Complainant also raises a
number of other technical deficiencies in the agency's investigation
and additionally cites the untimeliness of the FAD. Furthermore,
complainant contends that the FAD erred, when it did not include sex
(female) as a basis of discrimination in this case
On appeal, concerning the merits, complainant argues that the FAD erred in
failing to find discrimination as she alleged. Complainant requests that
the Commission: (1) reverse the FAD in its entirety; (2) issue a decision
in her favor; and (3) order the agency to provide all appropriate relief.
According to complainant there is direct evidence of discrimination,
but even if not, there is sufficient circumstantial evidence warranting
a finding of discrimination. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
PRELIMINARY MATTERS
Adequacy of the Agency's Investigation Record
Initial Investigation Record
Complainant argues that the agency did not include in the record some of
the evidence she submitted in the course of the initial investigation
record. More specifically, on November 21, 1995 complainant sent her
preliminary affidavit exhibits to the EEO investigator. Complainant
indicates that not all of the preliminary exhibits were included
in the agency's initial Report of Investigation (ROI). In addition,
complainant's preliminary affidavit was telefaxed to the EEO investigator
on November 22, 1995. Complainant points out that the preliminary
affidavit is not included in the ROI and listed as �not available.�
Accordingly, complainant attached a copy of the index of exhibits and a
copy of her preliminary affidavit to her appeal brief as Exhibits 1 and 2.
Assuming that all of the above documents should have been included in the
investigation record, complainant could have submitted whatever documents
she felt relevant for the Commission's review on appeal. Indeed, she
submitted her preliminary affidavit. She could have submitted any of the
missing exhibits as well, but did not. The Commission can only assume
that complainant did not feel such exhibits were sufficiently important
to warrant submitting on appeal.
Complainant's Supplement to the Investigation Record
We thus note that even after complainant withdrew her request for
a hearing, a Commission AJ (settlement judge) granted complainant's
request to supplement the record. The settlement judge further ordered
that any information submitted by the complainant would be made a part
of the record in this matter; that the agency was to keep the record
open to permit supplementation by complainant until March 31, 1998;
that the agency would hold this case in abeyance until April 1, 1998;
and that beginning April 1, 1998, the agency had 60 days to issue a FAD.
On March 27, 1998, complainant's counsel timely supplemented the record
in this case.
Complainant submits that the record should include the documents she
submitted March 27, 1998. Complainant's counsel attached a copy of the
index to the March 1998 supplemental materials for the Commission's
convenience as Exhibit 3. Complainant requests the Commission to
order the agency to provide the documents and to impose all appropriate
sanctions for the agency's failure to include the documents in the ROI.
Assuming that all of the documents submitted by the complainant on March
27, 1998, should have been included in the ROI record, complainant could
have submitted whatever documents she felt relevant for the Commission's
review on appeal.
Supplemental Investigation Record
On March 31, 1999, the agency's EEO headquarters (over complainant's
objection) remanded the case to its Regional Office of Regional Management
(ORM) and directed it to conduct a supplemental investigation concerning
the complainant's performance proficiency report dated August 12, 1994.
On April 26, 1999, ORM forwarded the supplemental investigation to the
agency's EEO headquarters and to complainant's counsel.
Complainant contends that the agency should not have conducted a
supplemental investigation. However, complainant does not request the
Commission to strike the supplemental investigation from the record.
Indeed, complainant indicates that the Supplemental ROI does not include
various exhibits, including complainant's counsel's correspondence from
January 1, 1998, through the �present.� See Complainant's Brief on
Appeal, Exhibit 4.
Assuming that all of the documents cited in Exhibit 4 should have
been included in the Supplemental ROI record, complainant could have
submitted whatever documents she felt relevant for the Commission's
review on appeal.
Other Alleged Evidentiary Deficiencies in the Initial and Supplemental
Investigation Record
Complainant also argues that the agency's investigation was inadequate for
failure to include other evidence as well. However, before complainant
withdrew her request for a hearing, she availed herself of discovery under
the Commission's regulations. Indeed, it appears that complainant engaged
in two sets of discovery before withdrawing her request for a hearing.
The hearing process is intended to be an extension of the investigative
process, designed to, inter alia, ensure that the parties have a fair and
reasonable opportunity to explain and supplement the record. See EEOC
Management Directive (MD) 110 (MD-110), as revised, November 9, 1999,
Chapter 6, page 6-1. Complainant in availing herself of a right to
a hearing also availed herself of the right to use the Commission's
procedures to supplement the record and to ensure that the record
was fully developed pursuant to the hearing process. See 29 C.F.R. �
1614.109(d), (e), and (f). Once complainant's right to a hearing was
exercised, and complainant availed herself of the Commission's discovery
procedures, it was the responsibility of complainant to ensure that the
record was fully developed with respect to making her case. Indeed,
as previously indicated, complainant was permitted to supplement the
record after she withdrew her request for a hearing.
Timeliness of the Completion of the Agency's Investigation
The Commission's regulations mandate that, absent the complainant's
agreement to an extension, an agency's investigation be completed within
180 days of the date the formal complaint was filed.
29 C.F.R. � 1614.108(e). Complainant filed her complaint on March 22,
1995. Both the ROI, issued February 20, 1996, and the Supplemental ROI,
issued on April 26, 1998, exceeded that time requirement.<2>
If an agency exceeds the time limit for issuing its investigation
report the complainant has the right to request a hearing, even in the
case of consolidated complaints, after 180 days have passed since the
filing of the original complaint, even if the agency's investigation
has not been completed. EEO MD-110 at 5-28; 29 C.F.R. � 1614.108(g).
Complainant chose not to request a hearing until the agency formally
notified her of a right to a hearing.
Timeliness of the FAD
Complainant submits that the FAD was issued almost one year after the
agency's 60-day deadline expired. 29 C.F.R. � 1614.110. The settlement
judge directed the agency to issue its FAD within 60 days of April 1,
1998, after complainant had had an opportunity to supplement the record.
Thus, the agency's FAD should have been issued no later than May 30, 1998.
Approximately one year later, the agency issued its FAD on May 27, 1999.
If an agency exceeds the time limit for issuing an FAD, the complainant
may ask the Commission to request the agency to issue the FAD. Since the
FAD has been issued, the question is moot.
Technical Deficiencies in the Agency's Investigation
Complainant also points out that the ROI and the Supplemental ROI were not
compiled properly, because they were not sufficiently indexed and tabbed
in accordance with MD-110. Complainant also complains that the ROI and
the Supplemental ROI were not paginated. Although the agency should
comply with the Commission's standards, complainant has shown no harm
by the above technical deficiencies in the ROI and the Supplemental ROI.
FAD's Framing of the Issues
Complainant argues that the FAD improperly fails to address complainant's
sex (female) discrimination claims, which were raised in her November
21, 1995, preliminary affidavit. Complainant points out that the
Commission permits the amendment of complaints pertaining to the bases
of discrimination. Complainant emphasizes that the Commission has
repeatedly held that a complainant may amend his or her complaint to
add another statutory basis for an alleged
discriminatory occurrence without changing the identity of the claim.
An agency's failure to address allegations raised during the processing
of a complaint constitutes rejection of the allegations.
Disposition of Complainant's Requests
Complainant requests that as a result of the inadequacies and untimeliness
of both the ROI and the Supplemental ROI the Commission find the following
to be warranted warranted: (1) the imposition of an adverse inference
against the agency; (2) a determination that the matters to which the
information or testimony pertains to be established in complainant's
favor; (3) the issuance of a decision fully or partially in complainant's
favor; (4) an award of discovery costs; and (5) orders to the agency to
provide the documents to the Commission and to impose all appropriate
sanctions for the agency's failure to include the documents in the ROI
and the Supplemental ROI. For the reasons discussed above, the Commission
denies complainant's above requests.<3>
Complainant requests that the Commission address her gender claims,
which were brought to the agency's attention in her preliminary affidavit
dated November 21, 1995. The ROI was not issued until February 20, 1996,
and the supplemental ROI was not issued until April 26, 1998. The agency
had sufficient time to investigate complainant's gender claims, and the
agency should have addressed complainant's gender claims. The Commission
will address, infra, the merits of complainant's discrimination claim
on the basis of sex.
MERITS OF COMPLAINANT'S CLAIMS
Disparate Treatment<4>
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). See also Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979) (requiring a showing that age was a determinative factor,
in the sense that "but for" age, complainant would not have been subject
to the adverse action at issue); and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
reprisal cases). Complainant must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination, i.e., that a prohibited reason was
a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Next,
the agency must articulate a legitimate, nondiscriminatory reason for
its action(s). Texas Department of Community Affairs v. Burdine, 450
U.S. 248 (1981). After the agency has offered the reason for its action,
the burden returns to the complainant to demonstrate, by a preponderance
of the evidence, that the agency's reason was pretextual, that is,
it was not the true reason or the action was influenced by legally
impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of discrimination by showing
that she is a member of a protected group and that she was treated less
favorably than other similarly situated employees outside her protected
group. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864,
865 (6th Cir. 1975). Complainant may also set forth evidence of acts
from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco, 438 U.S. at 576.
The 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. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
Complainant may show pretext by evidence that a discriminatory reason
more likely than not motivated management, that management's articulated
reasons are unworthy of belief, that management has a policy or practice
disfavoring the complainant's protected class, that management has
discriminated against the complainant in the past, or that management has
traditionally reacted improperly to legitimate civil rights activities.
See McDonnell Douglas.
Reassignment
On June 27, 1994, complainant was informed by the Deputy Chief, Nursing
Service (Responsible Management Official (RMO)) that, effective July
3, 1994, she was being detailed from her Manager Nurse position in
Ambulatory Care to a Nurse Practitioner position in the ETU in order
to meet the needs of the Medical Center and in support of the Medical
Center's goals. The detail was scheduled to end October 1994, but
was extended to February 26, 1995. Manager Nurse A (over 40, female)
of the Intensive Care Unit was assigned to be the Acting Nurse Manager
of Ambulatory Care while complainant was detailed.
On December 7, 1994, the RMO terminated complainant's detail, and
complainant was permanently reassigned to the Nurse Practitioner position
in the ETU. On December 19, 1994, the RMO issued a memo stating that,
effective December 12, 1994, complainant was permanently replaced by
Manager Nurse A.<5>
The agency articulated legitimate, non-discriminatory reasons for
its actions, i.e., the needs of the Medical Center exacerbated by the
inability to fill the ETU nurse practitioner position as well as concerns
about complainant's performance as a Nurse Manager. The RMO stated
that the Medical Center needed a nurse practitioner in the ETU, and the
complainant was the only individual who could fill the job requirements.
According to the RMO, the complainant was a part-time Nurse Manager,
and the agency had not been able to recruit an individual for the nurse
practitioner position in the ETU. The ETU had apparently decreased from
three or four employees to one, and complainant was only supervising
about five people in Ambulatory Care.
Indeed, even complainant concedes that the agency has had great
difficulty in filling positions in the ETU and in keeping staffing in
that department. Complainant's Brief on Appeal at 15. Complainant also
acknowledges that there is a chronic shortage of staff coverage in
the ETU. Id.
We find that complainant failed to establish pretext. An employer has
the discretion to determine how best to manage its operations and may
make decisions on any basis except a basis that is unlawful under the
discrimination statutes. Furnco Construction Co. v. Waters, supra; Nix
v. WLCY Radio/Rayhall Communications, 738 F.2d 1181 (11th Cir. 1984).
Thus, an employer is entitled to make its own business judgments.
The reasonableness of the employer's decision may of course be probative
of whether it is pretext. The trier of fact must understand that the
focus is to be on the employer's motivation, not its business judgment.
Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In the
Commission's view, the agency acted consistent with reasonable business
judgment, and complainant has failed to otherwise show that the agency's
actions were tainted by a discriminatory motive on a protected basis.
Complainant contends that there were other nurse practitioners, working
at the agency, who could have been reassigned to the ETU instead of her.
However, according to the RMO, all of the other nurse practitioners had
full-time jobs, and the Medical Center had no excess capacity. Thus a
nurse practitioner in another area could not be reassigned without
leaving a gap in that area, which, in turn, would have to be filled
by another nurse practitioner. On the other hand, by assigning Nurse
Manager A to take over complainant's nurse management duties, the agency
was freeing up complainant to take the nurse practitioner position.
There was no gap in work coverage, and in fact the Medical Center was
receiving more work coverage with the same number of people. The agency
was essentially transferring the functions of one position while filling
another position while keeping the number of employees constant.
Complainant argues that the agency could have reassigned another
Manager Nurse to the nurse practitioner position. The RMO explained
that the nurse manager job was an administrative position and there
were other people with qualifications as nurse managers who could
assume complainant's Manager Nurse position and not leave a gap in
that coverage. Nurse practitioners, on the other hand, are specially
trained, educated, and credentialed. The nurse practitioner also has a
certification by a national board as well as a practitioner's license.
According to the RMO, the Manager Nurse is a discretionary assignment.
It carries with it qualifications but not specific credentials. The RMO
also noted that complainant had experienced difficulty in doing her job
as a Manager Nurse.
Complainant also questions the timing of the reassignment, pointing out
that her detail had not yet expired. The RMO stated that they turned
the complainant's detail into a reassignment when they realized that
they were not going to be able to do anything differently with the ETU.
According to the RMO, they also needed to make a decision so that people
could be in place and work toward the goals of the Medical Center.
Complainant argues that the RMO similarly targeted other older and
primarily female Nurse Managers for adverse actions. Complainant
thus submits that the Associate Chief, Nursing (Associate Chief),
complainant's immediate supervisor, and Nurse Supervisor A, a Nursing
Evening Supervisor, and formerly a Nurse Manager of Ward 5, generally
indicated that there was discrimination against older nurses by the RMO.
The Associate Chief, retired on June 3, 1994, before the reassignment
in question. The Associate Chief provided an affidavit pursuant to
the agency's Investigation, but never indicated she felt complainant's
detail and reassignment were based on discrimination by the agency on a
protected basis. Although the Associate Chief filed an EEO complaint,
involving reassignment, which went through the investigation stage,
this resulted in a finding of no discrimination, and the Associate
Chief did not pursue the matter further. Nurse Supervisor A filed a
discrimination complaint which was the subject of a Commission decision,
finding no discrimination. Brier v. Department of Veterans Affairs,
EEOC Appeal No. 01972891 (August 16, 2001).<6>
Complainant reiterates numerous individuals who transferred or left the
agency because of the RMO. For most of the individuals, complainant did
not delineate their age and/or gender and/or disability. Complainant
also argues that she was not a part-time nurse manager. However, she
acknowledges that she worked two mornings a week as a nurse practitioner
in the agency's cardiac clinic. Even if complainant were a full-time
manager, that only makes the agency's action more justified from a
business judgment perspective.
Notwithstanding complainant's evidence, she has not met her burden
to prove by a preponderance of the evidence that the real reason for
the agency's challenged actions, was her age or sex. See St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (it is not sufficient
to �disbelieve the employer; the fact finder must believe the
plaintiff's explanation of intentional discrimination�). See also
Logue v. Int'l Rehabilitation Associates, Inc., 837 F.2d 150, 153 (3rd
Cir. 1988)(reasoning that where an employer articulates
more than one reason for its challenged action, the falsity or
incorrectness of one does not necessarily impeach the credibility of
the remaining reasons).
Performance Appraisal
On July 21, 1994, the RMO signed complainant's 1992-93 proficiency report.
The RMO changed complainant's 1992-93 �highly satisfactory� proficiency
rating from the Associate Chief to �satisfactory.� Complainant received
her 1992-93 proficiency on August 12, 1994. Complainant submitted a
detailed rebuttal to the July 21, 1994 narrative prepared by the RMO.
The agency articulated legitimate, non-discriminatory reasons for
its actions, i.e., that the complainant's 1992-93 proficiency rating
warranted a �satisfactory rating.� In lowering the 1992-93 proficiency
rating, the RMO detailed the reasons for the rating in an attachment
to the complainant's performance appraisal report. The RMO emphasized
complainant's alleged �difficulty in conceptualizing the need for changes
in her area of supervision� as well as complainant's alleged resistance
�for doing things differently,� her �lack of vision� and her investment
�in keeping the status quo.� The RMO explained that the complainant
had difficulty envisioning what needed to be done to make the operation
more effective, efficient, customer friendly, and more able to meet
patient needs. The RMO stated that even after she explained to the
complainant changes that should be made, the complainant did not want
to make the changes. She noted particularly that she talked to the
complainant about changes that needed to be made in a diabetes teaching
clinic and that complainant seemed unable to grasp the need for such
changes and did not implement them. She noted that regarding a certain
clinic, the complainant was unable to work with physicians and implement
a needed program.
We find that complainant failed to establish pretext. Complainant
emphasizes that the Associate Chief rated her performance �highly
satisfactory.� However, the Associate Chief, in her investigatory
affidavit indicated that complainant's performance �was clearly
satisfactory.� Associate Chief's Affidavit at 3. The Associate Chief
further stated that there were times when she felt that complainant's
performance was above that. Id. at 3. The Associate Chief further
indicated that between 1991 and 1994, complainant's performance ranged
between satisfactory and highly satisfactory. Id. at 4. The Associate
Chief also indicated that complainant �had a personal trait of slight
resistance to change.� Id. See also Complainant's Brief on Appeal at 56.
We view the Associate Chief Nursing's testimony as not particularly
supportive of complainant's argument that she was performing at a highly
satisfactory level in her Nurse Manager position, but rather tends to
support the RMO's performance rating of fully satisfactory.
Complainant also argues that the performance rating's late timing is
indicative of pretext. However, the Associate Chief, who initially
rated complainant, indicated that her proficiency reports were generally
late. Associate Chief's Affidavit at 7. Accordingly, it appears that
complainant's attempt to lay the responsibility solely on the RMO is
misplaced.
Complainant further argues that if the RMO was dissatisfied with
complainant's performance, she should have been given counseling, etc.
The Associate Chief indicated that there was at least one time when the
RMO instructed her to give complainant counseling. See also Complainant's
Brief on Appeal at 40 (RMO held lengthy meetings with complainant
for several months in 1992, during which she was very critical of
complainant's performance.). See also Complainant's Brief on Appeal at 4.
However, it appears complainant viewed the RMO's meetings as harassment.
Accordingly, we find it difficult to conclude that complainant was not
on notice that the RMO had concerns about complainant's performance.
Reasonable Accommodation
In February 1994, complainant was diagnosed with coronary artery disease,
hypertension, hypercholesterolemia, and angina pectoris. Complainant's
condition is aggravated by physical and emotional stress and can cause
pain and shortness of breath.
Complainant was detailed from her position as Nurse Manager of Ambulatory
Care to Nurse Practitioner in the ETU on July 3, 1994. On July 5,
1994, she complained to the RMO, that she believed that the Nurse
Practitioner position was more stressful and that it was harmful for
her heart condition. Essentially, complainant argues that when she was
notified of her detail, she requested reasonable accommodation, i.e., a
return to her Nurse Manager position. Complainant submitted a statement
from her doctor dated August 1, 1994, stating that the complainant had
noted an aggravation of her condition due to the emotional stress of
her new assignment. Complainant's doctor also indicated in a letter of
September 28, 1994, that complainant felt she was working with a lack
of ancillary services and physician support and that the situation
had resulted in excessive fatigue, anxiety, sleep disturbances, and
disruption of her overall medical control of her cardiovascular problem.
He stated that the complainant was responding well to medical treatment
and her prognosis overall was good. The RMO sent a letter to the
complainant dated October 28, 1994, stating that she had corrected
the situation addressed by complainant's doctor and that there was now
adequate physician support provided to the ETU, and that there should
be adequate ancillary support available.
One bringing a claim of disability discrimination must first
establish that s/he is a member of the class of persons protected
by the Rehabilitation Act, i.e., an individual with a disability.
An �individual with a disability� is defined as someone who: (1)
has a physical or mental impairment which substantially limits one
or more of such person's major life activities; (2) has a record of
such an impairment; or (3) is regarded as having such an impairment.
29 C.F.R. � 1630.2(g)(1)-(3). Pursuant to 29 C.F.R. � 1630.9(a),
an agency is required to make reasonable accommodations for the known
physical or mental limitations of an otherwise qualified applicant or
employee with a disability, unless the agency can demonstrate that the
accommodation would impose an undue hardship.
Reasonable accommodation means (i) modifications or adjustments to a job
application process that enable a qualified applicant with a disability
to be considered for the position he or she desires; (ii) modifications
or adjustments to the work environment, or to the manner or circumstances
under which the position held or desired is customarily performed, that
enable a qualified individual with a disability to perform the essential
functions of that position; (iii) modifications or adjustments that enable
a covered entity's employee with a disability to enjoy equal benefits and
privileges of employment as are enjoyed by its other similarly situated
employees without disabilities. 29 C.F.R. � 1630.2(o)(1)(i)-(iii).
Assuming arguendo complainant is a qualified individual with a
disability,<7> complainant requested reasonable accommodation i.e.,
a return to her Nurse Manager position. When an employee cannot perform
the essential functions of her current position because of disability, and
no accommodation is possible in that position, reasonable accommodation
may include reassignment to another position. Ignacio v. United
States Postal Service, EEOC Petitioner No. 0340005 (September 4, 1984),
aff'd, 30 M.S.P.R. 471 (Spec. Pan. February 7, 1986). However, there
was no indication that complainant was unable to perform the essential
functions of her assigned position as a nurse practitioner in the ETU.
While complainant indicates that it was more difficult for her working
in the nurse practitioner position than in the Nurse Manager position,
the agency's duty to provide reasonable accommodation does not require
that the employer provide the accommodation which is the easiest or
most preferred by the employee. Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, No. 915.002, at 29
(March 1, 1999). The agency was not required to consider reassignment
of complainant, given that complainant could perform the essential
functions of the nurse practitioner position in the ETU with or without
accommodation. See id. at 37 (Reassignment as a form of reasonable
accommodation may only be required when the employee, because of a
disability, can no longer perform the essential functions of his/her
current position).
Furthermore, as previously indicated, complainant submitted a statement
from her doctor dated September 28, 1994, indicating that complainant felt
she was working with a lack of ancillary services and physician support,
and that the situation had resulted in excessive fatigue, anxiety,
sleep disturbances, and disruption of her overall medical control of her
cardiovascular problem. The RMO sent a letter to complainant on October
28, 1994, stating that she had corrected the situation addressed by
complainant's doctor and that there was now adequate physician support
provided to ETU and there should be adequate ancillary support available.
Indeed, it appears that throughout the course of this proceeding,
complainant has still been working full-time as a nurse
practitioner in the ETU. Nurse Manager B (male, age 47), complainant's
supervisor after reassignment, stated that complainant was doing well
in her reassignment, and that complainant's cardiac condition had not
affected her work.
Under the above circumstances, we find that the agency did not fail to
reasonably accommodate complainant.
Harassment
Complainant alleges that she was harassed on the basis of age, sex,
and disability.
In determining whether a harassment complaint states a claim in cases
where a complainant has not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient
to state a hostile or abusive work environment claim. See Estate
of Routson v. National Aeronautics and Space Administration, EEOC
Request No. 05970388 (February 26, 1999). Here, while complainant has
alleged disparate treatment regarding her reassignment and performance
rating, and requested reasonable accommodation, complainant has alleged
harassment beyond the scope of specific terms, conditions, or privileges
of employment.
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: 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, 510 U.S. at 23. Harassment based on disability is
subject to the same standards, as outlined above. See Fox v. General
Motors, 247 F.3d 169 (4th Cir. 2001); Flowers v. Southern Regional
Physicians Services, 247 F.3d 229 (5th Cir. 2001).
Complainant emphasizes that the FAD does not take into consideration
the cumulative effect of the RMO's harassment over the years and does
not consider the fact that complainant knew other victims of the RMO's
harassment as well. Complainant's appeal thus outlines 29 incidents
of harassment. Essentially, complainant argues that she has endured
a pattern of on-going harassment based on age, gender, and disability,
in addition to reprisal, which will be discussed separately.
We have reviewed complainant's evidence in support of her harassment
claim, including the 29 incidents cited in her brief. We have previously
found that complainant failed to show that her involuntary reassignment,
her proficiency rating being lowered, and denial of her request for
accommodation were discriminatory. Many of the other incidents are based
on assertions by complainant and are otherwise unsupported. In addition,
many of the other incidents involve actions by management, concerning its
operations, in which the employer is entitled to make its own business
judgments, and which complainant has not shown to be unreasonable.
As previously indicated, an employer has the discretion to determine how
best to manage its operations and may make decisions on any basis except
a basis that is unlawful under the discrimination statutes. Furnco
Construction Co. v. Waters, supra. Some of the incidents have no nexus
with any of complainant's alleged protected bases, e.g., complainant's
allegation that �other� employees told [complainant] they quit because
of the RMO, and that employees in complainant's department received
counseling from the agency's psychiatric department. Incidents 11 and 12.
Complainant also relies heavily on the testimony of the Associate Chief
and Nurse Supervisor A as evidence of age-based harassment in her case.
While the Associate Chief indicated that she felt the RMO demonstrated
a bias against older nurses and favoritism towards younger nurses, the
Associate Chief did not state that the RMO harassed the older nurses.
See Associate Chief's Affidavit at 8. When the Associate Chief was
asked if the RMO articulated reasons why she felt that some of the
older nurses were no longer needed in their position, the Associate
Chief responded that the RMO �always placed it on the individual, the
individual's alleged inadequacies.� Id. at 27-28. Additionally, the
Associate Chief, while filing an EEO complaint, did not appear to allege
harassment, but rather focused on the issue of reassignment. Id. at 10.
Nurse Supervisor A's allegations of harassment were found without merit
in a Commission decision. See n. 6, supra.
It appears that with respect to gender-based harassment, complainant
focuses on the actions of the RMO and Nurse Manager B (male), who became
complainant's immediate supervisor after she had been reassigned, and
eventually succeeded the Associate Nurse. The RMO and Nurse Manager
B recommended that Nurse Manager A's conference costs be paid instead
of complainant's. The RMO and Nurse Manager B allegedly scrutinized
complainant's performance and criticized complainant for taking breaks
with a coworker. Complainant also alleged that she was no longer a
CPR instructor. The agency's explanations in the FAD concerning the
agency's failure to pay complainant's conference costs and for criticizing
complainant for taking breaks with a coworker are reasonable and have
not been shown to be pretextual.<8> Complainant has not shown that
the actions were motivated by any of her protected bases. Manager B
indicated that complainant was still a CPR instructor.
Complainant's reliance on disability-based harassment largely relies
on the agency's alleged failure to reasonably accommodate complainant,
especially in not reassigning her to her previous Nurse Manager position.
As previously indicated, we have found that allegation to be without
merit. In addition, complainant argues that when she complained about
stress in her new assignment as a Nurse Practitioner in the ETU, the
RMO advised her to contact one of the psychiatric nurses for training
in the area. However, the RMO stated that she advised complainant
to contact a psychiatric nurse for training on how to deal with the
psychiatric patient seen in the ETU. The RMO also indicated that all
nurses receive training in working with patients who are intoxicated
and threatening, and the training gives the necessary skills and tools
to deal with situations thereby decreasing stress.
Reprisal
In general, claims alleging reprisal are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green.
See Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases).
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) she engaged in prior protected activity; (2)
the acting agency official was aware of the protected activity; (3)
she was subsequently disadvantaged by an adverse action; and, (4)
there is a causal link. The causal connection may be shown by evidence
that the adverse action followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted).
The statutory retaliation clauses prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity.
Petty slights and trivial annoyances are not actionable, as they are
not likely to deter protected activity. More significant retaliatory
treatment, however, can be challenged regardless of the level of harm.
As the Ninth Circuit has stated, the degree of harm suffered by the
individual �goes to the issue of damages, not liability.� Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) (�the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination�whether based on race or some other
factor such as a motive of retaliation � is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]�). The retaliation provisions set no qualifiers on the term
�to discriminate,� and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).
It is undisputed that complainant established a prima facie case
of reprisal. It is recognized that some of the adverse actions
which complainant complains about took place very close in time to
complainant's exercise of protected activity.<9> Many of the alleged
incidents complainant cites are based on assertions by complainant
and are otherwise unsupported. The agency has articulated legitimate,
nondiscriminatory reasons for its actions. For the reasons previously
discussed, involving disparate treatment, reasonable accommodation,
and harassment, complainant has not shown pretext.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
April 4, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Where a complaint has been amended or consolidated with another
complaint, the investigation must be complete within the earlier of 180
days after the filing of the last complaint or 360 days after the filing
of the original complaint.
3 Complainant could have requested sanctions, including adverse
inferences and attorney's fees, against the agency from the Commission
AJ, had she continued the hearing process, and not withdrawn her request
for a hearing. See EEO MD-110 at 6-24. Sanctions would be appropriate
only where a party subsequently fails to comply with an order of the
AJ that puts the party on notice of the type of sanction that may be
imposed for noncompliance. Id. at n.8.
4 Complainant argues that she presented direct evidence of discrimination
based on age. We disagree.
�Direct evidence� may be any written or verbal policy or statement made
by an employer that on its face demonstrates a bias against a protected
group and is linked to the adverse action in question. See EEOC Revised
Enforcement Guidance on Recent Developments in Disparate Treatment
Theory, N-915.002 at Part III.A, 6 (July 14, 1992). A link between the
evidence of bias and the challenged employment can be shown if the biased
statements were made by the decision maker or one who was involved in
the decision, at or around the time the decision was made, even if the
biased remarks were not specifically related to the particular employment
decision at issue. See id., n. 8.
Complainant argues that the RMO's accusations that complainant was
resistant to change, and rigid and inflexible, on numerous occasions,
especially with regard to complainant's performance constituted direct
evidence of discrimination based on age. We do not agree that this is
direct evidence of discrimination. Complainant infers that the RMO was
stereotyping complainant. Complainant also argues, as direct evidence,
that other older nursing employees told complainant that they were
leaving the facility because of the RMO. Again, one must infer that
the employees were leaving because of age discrimination by the RMO,
and there is no specific statement by the RMO referenced.
5 Complainant's reassignment caused her to lose two steps of pay that
she received while a Manager Nurse.
6 Nurse Manager B alleged that she was discriminated against and harassed
on the bases of age (D.O.B. 2/16/36), sex (female), religion (Roman
Catholic) and reprisal (prior EEO activity) when she: (1) was not selected
to attend a Head Nurse meeting in May of 1993; (2) was verbally harassed
in October of 1993 concerning a video of a detoxification program; (3)
received a late proficiency review in April 1994; (4) was reassigned from
Head Nurse to Evening Supervisor effective March 20, 1994, resulting in a
pay reduction; and (5) was removed from the hospital's e-mail network on
April 14, 1994. A Commission AJ found no discrimination. The FAD also
found no discrimination. Nurse Manager B appealed to the Commission,
which affirmed the agency's FAD.
7 Complainant did not produce sufficient evidence to show that due to
her heart impairment, or any other impairment, that she was substantially
limited in a major life activity. Nor did complainant provide evidence
that she had a record of a disability or that she was regarded as a
person with a disability.
8 The RMO and Nurse Manager B recommended to the Travel and Training
Committee that Nurse Manager A's conference costs be paid, because Nurse
Manager A needed that information to manage the Ambulatory Care unit.
The RMO states that it was the decision of the Travel and Training
Committee to fund Manager A. Complainant was told that she and another
nurse practitioner should not take breaks together to ensure that a
nurse practitioner would be left to cover the ETU.
9 Complainant filed her first EEO complaint on August 8, 1994. (Agency
Case No. 94-2102; EEOC Hearing No. 160-95-8211X), alleging discrimination
based on age, gender, and disability, when she was detailed to the ETU
and denied reasonable accommodation. According to complainant, prior to
filing the complaint, on July 12, 1994, the EEO Counselor interviewed
the RMO about complainant's allegations. Additionally, on December 5,
1994, the agency issued the ROI and the Notice of Election Rights in
complainant's case. Complainant's efforts to consolidate her first
EEO complaint with the present complaint were unsuccessful. Although
complainant suggests that her first EEO complaint was consolidated with
the complaint of Nurse Manager B (see n. 6, supra), the Commission has
been unable to verify this. See generally Complainant's Brief on Appeal
at 21, n. 6. Although complainant indicates that a FAD was issued,
there is no record of an appeal by complainant to the Commission.