0120082809
01-06-2011
Barbara Johnson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Barbara Johnson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01-2008-2809
Hearing No. 510-2007-00375X
Agency No. 200I-0516-2006103484
DECISION
On June 5, 2008, Complainant filed an appeal from the May 7, 2008 final
Agency decision (FAD) concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
2000e et seq. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Registered Nurse (RN) at the Agency’s Bay Pines Veterans Affairs (VA)
Healthcare System in Bay Pines, Florida. On August 8, 2006, Complainant
reported to her supervisor (S1) that the Charge Nurse (CN1) had sexually
harassed her. Complainant alleged that the harassment began in February
2006, when CN1 informed her that he had three mistresses in Puerto Rico,
three legitimate children with his wife, and three illegitimate children
with other women. Complainant stated that CN1 told her that he considered
having a physical relationship with Complainant and thought about her
all the time, but thought better of the idea of pursuing a relationship
with her. Complainant contends that after she rejected his advances,
he began assigning her more difficult assignments than the other RNs and
refused to assist her while helping other RNs on the floor. S1 asked
Complainant to draft a Report of Contact so that she could investigate it.
On August 9, 2006, management moved CN1 from the night shift, where
he worked alongside Complainant, to the day shift and instructed him
not to have any contact with Complainant. Further, management ensured
that CN1 and Complainant would not be assigned to the same patients to
eliminate any shift change interaction. Two independent nurse managers
conducted an informal investigation into Complainant’s allegations.
While the informal investigation was pending, management determined that
Complainant was having performance issues on the night shift. On August
24, 2006, S1 met with Complainant and explained that she was moving her
to the day shift due to patient and staff complaints, inappropriate and
unprofessional behavior, and performance concerns. CN1 was moved back to
the night shift to prevent any interaction between him and Complainant.
At the same meeting, management issued Complainant a proposed reprimand
identifying seven issues with patient safety and behavior deficiencies.
The informal investigation returned inconclusive results; therefore, a
more formal investigation by the Administrative Board of Investigation
(ABI) was conducted. On November 28, 2006, the AIB concluded that CN1
had not sexually harassed Complainant, that CN1 did not unfairly assign
difficult assignments to Complainant, and that Complainant had actually
demonstrated sexually explicit behavior with co-workers.
On September 28, 2006, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of sex (female) and
in reprisal for prior protected EEO activity when:
1. From February 2006, until July 31, 2006, her Charge Nurse (CN1)
sexually harassed and told her on approximately half a dozen occasions
that he had considered having a physical relationship with her, that he
had three illegitimate children, and that he had three mistresses back
in Puerto Rico;
2. On July 31, 2006 and August 7 - 8, 2006, CN11 began assigning her
more difficult assignments, more patients, and refused to assist her
when she requested such, contrary to his treatment of the other RNs;
3. Management changed her tour of duty from 3:30 PM - 12:00 AM to 7:30
AM - 4:00 PM, effective September 11, 2006; and,
4. On August 11, 2006, Complainant received a proposed reprimand which
was sustained on October 4, 2006.
On December 12, 2006, Complainant amended her complaint to allege that
the Agency discriminated against on the basis of sex (female) and in
reprisal for prior protected EEO activity when:
5. Her requests on September 18, 2006, and November 8, 2006, for a
temporary detail to Ward 3C were denied;
6. On or about December 11, 2006, she was detailed to Ward 5B;
Complainant further alleged that she was subjected to a hostile work
environment on the basis of sex (female) and in reprisal for prior
protected EEO activity when:
7. On or about November 30, 2006, she was accused of being “less than
professional;”
8. She requested “protection” under the Whistle Blower Protection
Act, as she had identified sexual harassment at her facility and her
tour of duty was changed; and,
9. Complainant requested that the Office of Resolution Management
intervene to prevent Complainant from being removed from Ward 5B to
Ward 3C.
The Agency dismissed claims (5) and (6) on the grounds that these claims
were not brought to the attention of an EEO Counselor and were not
like or related to the claims raised in the original complaint. Next,
the Agency dismissed claims (7), (8), and (9) pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim. Specifically, as to claim
(7), the Agency determined that an isolated event does not state a
claim of harassment when the matter complained of is neither severe nor
pervasive. As to claim (8), the Agency concluded that Complainant had
already exercised her right by filing the instant complaint. Finally,
regarding claim (9), the Agency noted that the Agency’s Office of
Resolution Management had no authority to intervene in the day-to-day
operations of a VA field facility. Accordingly, the Agency determined
that claims (1) – (4) remained and would be investigated.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing, but subsequently withdrew
her request. Consequently, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).
Initially, the FAD affirmed the Agency’s dismissal of claims (5) and
(6) pursuant to 29 C.F.R. § 1614.107(a)(2) as these claims had not been
brought to the attention of an EEO Counselor and were not like or related
to a matter that had been brought to the attention of an EEO Counselor.
Further, the FAD affirmed the Agency’s dismissal of claims (7) – (9)
for failure to state a claim. Additionally, the FAD found that claim (4)
should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(4) as the record
indicated that Complainant raised the matter in a negotiated grievance
procedure that permitted allegations of discrimination. Accordingly,
the FAD dismissed claim (4).
Next, as to claim (1), the FAD determined first that the evidence in
the record indicated that the alleged sexually harassing conduct did
not occur. The FAD found that the alleged harasser denied ever making
the alleged statements and Complainant’s co-workers denied having
heard such conversations. Furthermore, an informal investigation into
the matter and a subsequent AIB investigation both concluded that the
alleged sexual harassment never actually occurred.
The FAD then assumed that the alleged conduct had occurred and determined
that Complainant still had not established a prima facie case of sexual
harassment. In particular, Complainant failed to show that the harassment
was sufficiently severe or pervasive. Additionally, Complainant failed
to show that management failed to take prompt and appropriate action as
the record indicated that management immediately moved CN1 away from
Complainant’s shift in the evening to the day shift. As a result,
the FAD concluded that Complainant had not established a prima facie
case of sexual harassment.
As to Complainant’s disparate treatment claims, the FAD determined that
Complainant failed to establish a prima facie case of sex discrimination.
Specifically, Complainant failed to show that an employee outside of
her protected group was treated more favorably. As to reprisal, the
FAD determined that Complainant had established a prima facie case of
reprisal discrimination. Nonetheless, the FAD assumed that Complainant
had established a prima face case of discrimination on the alleged bases
for all claims and determined that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions.
Regarding Complainant’s sexual harassment claim, management confirmed
that immediately after Complainant reported CN1’s alleged harassment
of her, the Agency initiated an investigation by neutral third parties,
moved CN1 way from Complainant to the day shift, and ensured that CN1
and Complainant did not share the same patients. The Agency noted that
moving CN1 to another ward would not have been feasible at the time due
to staffing needs. Further, after the informal investigation returned
inconclusive results, a more formal AIB investigation was initiated.
The informal investigation and the AIB revealed that Complainant’s
allegations of sexual harassment against CN1 were unfounded because
Complainant could not provide any substantiating testimony or evidence to
support her allegations. Additionally, the FAD found that one witness
testified to overhearing Complainant state that she was going to get
CN1 back for making unfair assignments. Accordingly, the FAD found that
Complainant had not been subjected to sexual harassment.
As to claim (2), the CN denied assigning Complainant more patients,
assigning her more difficult assignments, and refusing to provide her
with assistance when requested. The record indicated that Complainant
had problems submitting to authority figures, constantly complained about
assignments she received, refused to take patients and assignments on
several occasions, and was often argumentative. As a result, the FAD
determined that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions.
Finally, regarding claim (3), the FAD determined that Complainant’s tour
of duty was temporarily changed due to patient and staff complaints,
inappropriate and unprofessional behavior, and patient safety and
performance concerns. Complainant’s performance problems necessitated
closer monitoring and implementation of an individualized development plan
(IDP). Accordingly, the FAD found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. The FAD concluded that
Complainant failed to present any evidence indicating that the Agency’s
reasons were pretextual; therefore, the FAD concluded that Complainant
failed to prove that the Agency subjected her to discrimination or
harassment as alleged.
CONTENTIONS ON APPEAL
Complainant submits no arguments on appeal. The Agency requests that
the Commission affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at 9-15 (Nov. 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
Procedural Dismissals (Claims (4) – (9))
As an initial matter, the Commission shall address the Agency’s
procedural dismissal of portions of Complainant’s complaint. Regarding
claims (5) and (6), the Commission finds that these matters were properly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(2). These claims were
not brought to the attention of an EEO Counselor and are not like or
related to the instant complaint. Therefore, the Commission finds that
the Agency properly declined to amend the complaint with these claims.
As to claim (7), the Commission agrees with the Agency that Complainant
failed to show that she had been aggrieved by an isolated event that
was neither severe nor pervasive. Moreover, the Commission finds that
the Agency properly dismissed claim (8) because it fails to state a
claim upon which relief may be granted. Further, claim (9) raises a
matter outside the purview of the Commission’s laws and regulations.
Accordingly, the Agency’s dismissal of these claims for failure to
state a claim was proper.
Finally, the FAD dismissed claim (4) pursuant to 29 C.F.R. § 1614.301(a)
for raising the same matter in a negotiated grievance procedure that
permits claims of discrimination. The record reveals, that claim
(4) was first raised within the EEO process, then later within the
negotiated grievance procedure. The record further reveals that
under the terms of the Agency’s collective bargaining agreement,
employees have the right to raise matters of alleged discrimination
under the statutory procedure or the negotiated grievance procedure,
but not both. The record indicates that Complainant filed a Step 3
grievance regarding claim (4) on November 24, 2006, which was denied by
the Agency on December 19, 2006. Thus, Complainant elected to pursue
the matter within the grievance procedure after filing an EEO complaint.
Moreover, the Commission concludes that claim (4) states the same claim as
Complainant’s Step 3 grievance considered and ruled upon by the Agency.
Accordingly, the Commission finds that under the circumstances of this
case, because Complainant proceeded with the grievance through a Step
3 decision, Complainant constructively elected to pursue the matter
through the grievance process even though the grievance was filed after
she filed a formal EEO complaint. See Younger v. Dep’t of Veterans
Affairs, EEOC Appeal No. 01A11389 (June 3, 2002). As a result, the
FAD’s dismissal of claim (4) was appropriate.
Disparate Treatment (Sex and Reprisal)
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For Complainant to prevail, she 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 Constr. 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 Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, 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
Ctr. 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 Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, the Commission finds that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, as
to claim (2), CN1 denies treating Complainant any differently than any
other RN. CN1 asserts that he was responsible for assigning patients
to the RNs and his practice was to assign himself more patients rather
than over-assign the staff RNs. ROI, CN1’s Aff., at 10. Further, CN1
denies refusing to assist Complainant. Id. CN1 notes that on August 7
and 8, 2006, Complainant was very argumentative regarding his assignments
to her. Id. at 8-9. Additionally, CN1 affirms that Complainant often
complained about her assignments no matter how the assignment was given
which disrupted the staff. Id. at 9-11.
In regard to claim (3), S1 asserts that Complainant had performance issues
on the evening tour; therefore, between the informal investigation and
the AIB investigation, she moved Complainant to the day shift and CN1
back to the evening shift. ROI, S1’s Aff., at 12. S1 maintains that
Complainant needed to be more closely supervised after assessing her
interpersonal relations issues. Id. at 16. S1 adds that she met with
Complainant and explained to her that she was changing her tour of duty
because of patient and staff complaints, inappropriate and unprofessional
behavior, and concerns about her performance. Id. at 12-13.
S2 confirms that Complainant’s performance was the reason she was
moved to the day shift and not the sexual harassment allegations.
S2 affirms that the Agency received a complaint that Complainant had
violated procedure and left a patient alone in an enhanced safety
observation (ESO) room to go work on a bulletin board. ROI, S2’s
Aff., at 9-10. Patients who are at risk for falls or sudden changes in
condition are placed in ESO rooms, and it is the responsibility of the
assigned RN to not leave these patients unattended. ROI, S1’s Aff.,
at 14. Complainant left a patient alone on multiple occasions to work
on a bulletin board in the break room despite repeated requests by the
Charge Nurse to not leave the room. Id. Additionally, the record
reveals that Complainant delayed administering pain medication for
several hours to a patient. ROI, S2’s Aff., at 10. S2 avers that
she and S1 decided to place Complainant on an IDP while she worked on
the day shift and informed Complainant that this move was temporary and
designed to improve her performance. Id. at 11.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, Complainant now bears the burden of
establishing that the Agency’s stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this by showing that the Agency
was motivated by a discriminatory reason. Id. (citing St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502 (1993)). Aside from Complainant’s
bare assertions, the record is devoid of any persuasive evidence
that discrimination was a factor in any of the Agency’s actions.
At all times the ultimate burden of persuasion remains with Complainant
to demonstrate by a preponderance of the evidence that the Agency’s
reasons were not the real reasons, and that the Agency acted on the basis
of discriminatory animus. Complainant failed to carry this burden.
Accordingly, the Commission finds that Complainant has failed to show
that she was discriminated against as alleged.
Sexual Harassment
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently severe or pervasive.
Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (DC. Cir. 1985));
EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. (Enforcement
Guidance) at 3, 9 (Mar. 8, 1994). In determining whether a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with
an employee's work performance. See Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “Conduct that is not severe or pervasive enough to
create an objectively hostile work environment-an environment that a
reasonable person would find hostile or abusive-is beyond Title VII's
purview.” Harris, 510 U.S. at 22 (1993).
In order to establish a prima facie case of sexual harassment, Complainant
must prove, by a preponderance of the evidence, the existence of five
elements: (1) that she is a member of a statutorily protected class;
(2) that she was subjected to unwelcome conduct related to her sex;
(3) that the harassment complained of was based on her sex; (4) that
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) that there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,
903 (11th Cir. 1982); see also Oncale v. Sundowner Offshore Serv., Inc.,
523 U.S. 75, 81 (1998) (Title VII “forbids only behavior so objectively
offensive as to alter the ‘conditions' of the victim's employment.”).
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (March 8, 1994).
An employer is subject to vicarious liability for harassment if it
is “created by a supervisor with immediate (or successively higher)
authority over the employee.” Burlington Indus., Inc., v. Ellerth,
524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton,
524 U.S. 775, 11b S.Ct 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The Agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
the complainant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the Agency or to avoid harm
otherwise. Burlington, 118 S.Ct. at 2270; Faragher, 118 S.Ct. at 2293;
Enforcement Guidance Vicarious Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
Upon review of the record, the Commission finds that Complainant has
failed to prove, by a preponderance of the evidence, that she was
subjected to sexual harassment. Specifically, the Commission finds
that Complainant failed to present persuasive evidence that the conduct
complained of occurred as alleged. The Commission notes that the record
does not contain any witness testimony corroborating Complainant’s
version of events. Additionally, the record discloses that the Agency’s
informal investigation and a formal AIB investigation concluded that
Complainant’s allegations against CN1 were unfounded because Complainant
could not provide any substantiating testimony or evidence to support
her allegations. Accordingly, the Commission finds that Complainant
has failed to show that she was subjected to harassment as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 6, 2011
Date
1 The FAD incorrectly identified Complainant’s day shift Charge Nurse
(CN2) as the responsible management official named in this claim.
The record establishes that Complainant alleged that CN1 gave her more
difficult assignments and refused to assist her after she rejected
his advances. See Complainant’s Aff., at 10-11.
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01-2008-2809
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013