0120100923
03-13-2012
Barbara Szymczyk, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Barbara Szymczyk,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100923
Hearing No. 430-2008-00178X
Agency No. 2004-0637-2007103042
DECISION
On December 15, 2009, Complainant filed an appeal from the Agency's November 10, 2009, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
At the time of events giving rise to this complaint, Complainant worked as the Chief of Health Administrative Service at the Agency's facility in Asheville, North Carolina. On July 30, 2007, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the bases of national origin (Polish), sex (female), age (61), and in reprisal for prior protected activity when:
1. Complainant received a letter of counseling;
2. Complainant's supervisor reassigned one of Complainant's employees without Complainant's knowledge, causing Complainant to be short-staffed; and
3. Complainant's supervisor told Complainant that Complainant's secretary was not capable of being promoted to the next level.
Complainant also claimed that the aforementioned actions created a hostile work environment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Complainant filed a Motion to Amend her complaint on March 10, 2009, wherein she claimed that the Agency continued to subject her to a hostile work environment. The AJ assigned to the case requested additional information, and Complainant filed a Supplemental Motion to Amend on July 13, 2009. Complainant included incidents that occurred from March 2008 through July 2009. On July 30, 2009, the Agency filed a Response opposing Complainant's Motion. On October 14, 2009, the AJ denied the Supplemental Motion to Amend. The AJ stated that some of the incidents occurred more than ten months after the pending claims and more than ten months prior to the Motion. The AJ further stated that the incidents did not appear like or related to the claims that occurred in May 2007. The AJ granted the Agency's Motion for a Decision Without a Hearing and issued a decision without a hearing on October 26, 2009.
The AJ found that no discrimination occurred. AJ's Decision at 8. The AJ found that Complainant failed to establish a prima facie case under any of the alleged bases. Id. at 7. With regard to the claim of reprisal, the AJ noted that Complainant last engaged in EEO activity twelve years before the instant complaint. Id. at 2. The AJ rejected Complainant's position that her expression of support for the Chief of Surgery Service when he filed a complaint constituted protected activity. Id. at 7. The AJ further found that Complainant failed to establish a prima facie case of harassment. Id. at 8. The AJ stated that Complainant did not show that the Agency's actions were based on her membership in a protected group. Id. Further, the AJ found that the letter of counseling, reassignment of Complainant's employee, or the comments about Complainant's secretary were not severe or pervasive enough to alter the terms, conditions, or benefits of her employment. Id.
With respect to the letter of counseling, the AJ observed that the Agency stated that it was issued to Complainant because she did not attend or send representation to a mandatory staff meeting. Id. at 4. As for the reassignment of Complainant's employee, the Agency stated that the employee was temporarily detailed due to her health problems and the possible relationship between those problems and her work in the Health Administrative Service. Id. at 4-5. With regard to telling Complainant of the reason for the non-selection of Complainant's secretary, the Agency stated that the secretary lacks a skills set. Id. at 5. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its relevant actions. Id. at 8. The AJ found that Complainant failed to establish pretext. Id. The AJ further stated that Complainant failed to demonstrate that anything other than management's authority to manage the Medical Center motivated the supervisor to issue the letter of counseling, reassign an employee, comment on the secretary's skills set, and not to promote the secretary. Id.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant contends that she did not file an opposition to the Agency's Motion for a Decision Without a Hearing because the first AJ in this matter had scheduled a prehearing conference. Complainant states that the Agency's attorney informed her that they would discuss the Motion during the prehearing conference. Complainant maintains that she both was questioned by the Agency's attorney prior to the Chief of Surgery Service's hearing and that she also testified. Complainant criticizes the AJ who issued the findings in this matter for focusing on the incidents that occurred in May 2007. Complainant argues that the focus should instead have been on why these incidents occurred, the reprisal and hostile work environment as a result of the Chief of Surgery Service's EEO case. Complainant argues that her Motion to Amend should have been granted because it included related incidents and three additional officials who were continuing the pattern of discrimination against her.
In response, the Agency asserts with regard to Complainant's alleged protected activity that her support of the Chief of Surgery Service and the secretary in May 2007, did not include involvement in the investigation, proceeding, or hearing. The Agency maintains that Complainant's support did not constitute EEO activity. With regard to the letter of counseling, the Agency states that the reason Complainant gave for not attending the meeting was the decision to reassign one of her employees. The Agency notes that the letter of counseling was not a disciplinary action and was not placed in Complainant's official personnel folder.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the Complainant's statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe and 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). 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 Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
Initially, with regard to Complainant's claim that she did not file an Opposition to the Agency's Motion for a Decision Without a Hearing because a prehearing conference had been scheduled, we find that this is an insufficient basis to challenge the AJ's decision. There is no evidence other than Complainant's assertion that the attorney for the Agency indicated to her that the matters at issue in the Agency's Motion could be resolved by the parties at the prehearing conference. As for the AJ's decision to deny Complainant's Supplemental Motion to Amend her, we find that the AJ's decision was appropriate and not an abuse of her discretion as the matters raised are not like or related to those contained in the original complaint.
We shall assume, arguendo, that Complainant established a prima facie case of discrimination for all claims. With regard to the letter of counseling issued to Complainant, the Agency stated that it was issued due to Complainant's failure to attend or send representation to the mandatory staff meeting. As for the temporary reassignment of one of Complainant's employees, the Agency stated that this occurred as a result of her health problems and the possible relationship between those problems and her work in the Health Administrative Service. With respect to telling Complainant of the reason for the non-selection of her secretary, the Agency stated that the secretary lacked a skill set, and in particular noted that she lacked the interpersonal skills for the position. We find that the Agency articulated legitimate, nondiscriminatory reasons for each of the actions at issue.
Complainant attempts to establish pretext with regard to the letter of counseling by arguing that the Agency did not investigate why she was not at the meeting. Complainant states that she was involved with a patient care matter and that she tried to call her supervisor, but she did not answer the telephone. However, the record reveals that Complainant also expressed that she did not attend the required staff meeting due to her disagreement with the reassignment of one of her employees. Complainant has not presented sufficient argument or evidence to establish that the issuance of the letter of counseling was attributable to discriminatory intent.
With respect to the reassignment of the employee, Complainant contends that her authority was undermined when management reassigned one of her employees without consulting with her. However, Complainant acknowledged that the decision to reassign or transfer Health Administrative Service employees, as well as staffing and budgeting decisions, are prerogatives of managers senior to her. The decision to temporarily detail the employee was made after she was admitted to a local hospital for mental health related issues, and the employee's physician submitted documentation stating his belief that her condition was directly related to her work in the Health Administrative Service. We find that the record does not support Complainant's contention that she was discriminated against when one of her employees was reassigned to a temporary detail.
As for telling Complainant why her secretary was not being promoted, Complainant argues that her secretary was fully qualified and capable of being promoted as she was filling the responsibilities of the position at issue for the past two or more years. The Agency stated that the secretary lacked a skill set for the job as she did not have sufficient interpersonal skills. We find that Complainant has not submitted sufficient argument or evidence to establish that the Agency discriminated against her when it informed her of the reason that her secretary was not promoted.
With regard to Complainant's claim of a hostile work environment, we find that it has not been established that the incidents at issue occurred due to discriminatory intent. Further, we find that these matters were not sufficiently severe or pervasive to constitute a hostile work environment.
CONCLUSION
The Agency's determination in its final action that no discrimination occurred is AFFIRMED.
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 (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 (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
March 13, 2012
__________________
Date
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0120100923
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100923