01A32980_r
12-23-2003
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]."