Bertha M. Walker, Complainant,v.Capt. Jerald L. Ulmer, Director, Armed Forces Retirement Home, (U.S. Naval Home) Agency.

Equal Employment Opportunity CommissionDec 23, 2003
01A32980_r (E.E.O.C. Dec. 23, 2003)

01A32980_r

12-23-2003

Bertha M. Walker, Complainant, v. Capt. Jerald L. Ulmer, Director, Armed Forces Retirement Home, (U.S. Naval Home) Agency.


Bertha M. Walker v. Armed Forces Retirement Home

01A32980

December 23, 2003

.

Bertha M. Walker,

Complainant,

v.

Capt. Jerald L. Ulmer,

Director,

Armed Forces Retirement Home,

(U.S. Naval Home)

Agency.

Appeal No. 01A32980

Agency Nos. AFRH99-00USNH-003 and AFRH00-00USNH-001

Hearing No. 130-A0-8272X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) 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. The appeal

is accepted pursuant to 29 C.F.R. � 1614.405.

The record reveals that complainant, a Physical Therapy Assistant at the

agency's Armed Forces Retirement Home in Gulfport, Mississippi facility,

filed a formal EEO complaint, alleging that from June 1998 through May

1999, the agency harassed and discriminated against her on the bases

of race (African-American), sex (female), and in reprisal for prior EEO

activity when:

(1) The contract Physical Therapist questioned her qualifications

and competence;

The contract Physical Therapist refused to provide complainant with

feedback on restorative care plans for residents;

The Director of Health Care Services questioned several resident's

under complainant's care about whether complainant had verbally abused

or taken money from them;

The Director of Health Care Services failed to take action on complaints

of disrespectful conduct, including sexual harassment, involving the

contract Physical Therapist against another employee; and

Complainant was moved from her previous workplace to a small corner in

the charting room.

In a formal complaint signed October 11, 1999, complainant further alleged

that the agency retaliation against her for prior EEO activity when:

On August 9, 1999, the Acting Director of Health Care Services, assigned

her to work with [ N1] instead of an outpatient nurse [N2]; and

On August 10, 1999, a supervisor changed her duty hours from flexible

to 6:45 a.m. to 3:15 p.m., assigned her duties that were not covered

by her position, and requested a profile depicting how she expended

time on the job in thirty minute increments.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination or harassment. The AJ concluded that while the evidence

reflected that a personality conflict existed between complainant and

the contract physical therapist, there was no evidence that the agency's

actions were based on unlawful discrimination or reprisal.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

The record contains a copy of the position description for a physical

therapy assistant. The description states that the physical therapy

assistant promotes health maintenance, rehabilitation, and self-care

responsibility in the physical therapy setting by providing specialized

and diversified treatment to residents of the United States Naval Home.

The description also states that the physical therapy assistant provides

support and assistance to the physical therapist, whose services are

provided by contract. Finally, the description states that the physical

therapy assistant has the responsibility of accepting other assigned

tasks which enhance patient care and benefit the department.

In hearing testimony, complainant stated that about three to four months

after she began her employment with the agency, the contract physical

therapist began asking her about her training and educational background.

"There were times I was doing something and [the contract physical

therapist] would ask me if I was qualified to do it," complainant stated.

Complainant stated that she told the Management and Program Analyst about

the physical therapist's conduct and was assured that "everything would

be ok." The Management and Program Analyst testified that the contract

physical therapist came to her seeking assurance that complainant was

properly licensed to be a physical therapy assistant because he was

responsible for anyone working under his direction. The Management

and Program Analyst further stated that he told the contract physical

therapist that complainant was actually working under a physician's

supervision and was qualified by the Office of Personnel Management (OPM)

to be a physical therapist assistant. "When I explained the situation to

[the contract physical therapist], he appeared to accept my explanation

because he did not come back to me on that issue," the Management and

Program Analyst testified.

In her hearing testimony, complainant contends that the contract physical

therapist failed to provide her with patient feedback necessary for

her to do resident care. Complainant stated that after she complained,

management held a meeting with her and the contract physical therapist and

informed him that he must provide complainant with technical assistance

and feedback. The contract therapist testified that he did not provide

complainant with feedback on the patient's progress. The Management

and Program Analyst responded that after complainant brought up the

feedback issue to her, she talked to the contract representative about

how to use the medical record and independent documentation to improve

the communication between complainant and the contract physical therapist.

Complainant testified that her supervising physician questioned

three patients about claims made by the contract physical therapist.

The questions concerned allegations that complainant verbally abused

patients and stole money from them. Complainant's supervising physician

responded that he questioned the patients only because the contract

physical therapist claimed that he had seen complainant taking money

from patients. "To protect Ms. Walker and the Home, I asked the three

patients about the allegation....We did have problems with 3 or 4

nurses taking money from patients. We were sensitive to those types

of complainants and we followed up on them," the supervising physician

stated. The supervising physician further stated that after all three

patients denied the allegations, he told complainant not to worry about

the claims.

Regarding claim 4, complainant testified that her supervising physician

failed to investigate claims that the contract physical therapist sexually

harassed and disrespected a colleague. The physician responded that

the claims were passed along to the contractor who hired the contract

physical therapist. The physician further stated that she talked to the

contract physical therapist and told him to "cease and desist if any of

the allegations were true," but he denied the allegations.

Complainant further testified that the agency moved her from her workplace

to a small corner in the charting room. The supervising physician

stated that complainant came into her office in May 1999 and stated

that she could not get along with the contract physical therapist and

"could not take it anymore" in the physical therapy room. The physician

testified that she felt that the best option was to move complainant to

another area because of the "personality conflict." The physician further

stated that because the contract physical therapist was about to leave

the facility, she thought that it would be best to remove complainant

from the physical therapy room and then build a new relationship when

the new contractor arrived. The physician asserted that at the time she

moved complainant, complainant continued to perform restorative care on

nursing home patients as before.

Regarding claim 6, complainant testified that she thought she would be

reassigned back to N2's supervision and that N1 was her supervisor for

only a temporary period of time. Complainant states that by assigning

her to N1 instead of N2, she was placed outside the correct organizational

alignment for a physical therapist assistant. The supervising physician

responded that she placed complainant with N1 because complainant was

the only staff person who was not being directly supervised and was

not licensed. The physician stated that by placing complainant with N1,

complainant was able to have direct local supervision, whereas N2 worked

in the physically removed outpatient area. The physician further stated

that N2 did not have familiarity with the type of work that complainant

performed.

Complainant testified that a supervisor changed her duty hours from

flexible to 6:45 a.m. to 3:15 p.m., assigned her duties that were

not covered by her position such as taking patients to the restroom

and changing dirty diapers, and requested a profile depicting how she

expended time on the job in thirty minute increments. The supervising

physician testified that she changed complainant's hours to coincide

with N1's work hours because she felt that N1 needed more input in

complainant's job. The supervising physician responded that the

duties complainant complained about were part of her job description.

The physician further responded that complainant was required to list

her work accomplishments to evaluate how efficiently her time was being

utilized. The physician stated that she had noticed that complainant

"seemed to have a lot of time on her hands."

Upon review, we find that the AJ properly found no discrimination or

harassment. We first find that claim 4 fails to state a claim under EEO

Regulations because it involves alleged harm to complainant's coworker,

but not to complainant's own terms, conditions, or terms of employment.<1>

Consequently, we dismiss claim 4 for failure to state a claim. We further

find that the agency proferred legitimate, non-discriminatory reasons

for each of its actions, and complainant failed to present any evidence

that any of the agency's actions were motivated by retaliation or animus

against her sex or race.

Accordingly, after a careful review of the record, the Commission finds

that the AJ's findings of fact are supported by substantial evidence

in the record and that the AJ's decision referenced the appropriate

regulations, policies, and laws. We discern no basis to disturb the

AJ's decision. Therefore, we affirm the agency's final order.

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

_December 23, 2003_________________

Date

1During the hearing, complainant responded to a question about who

was the victim of the alleged sexual harassment by stating, "well,

the sexual harassment was directed towards her [the co-worker]."