0120121790
08-15-2012
Brenda Adams, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Brenda Adams,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121790
Agency No. 2001-0573-2009101768
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 9, 2012 final decision 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.
BACKGROUND
During the period at issue, Complainant worked as a Nurse Case Manager, III at the Agency's Performance Improvement Service, Veterans Affairs Medical Center in Gainesville, Florida.
On May 19, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American) and in reprisal for prior EEO activity when:
1. on or about December 16, 2008, she discovered that she was charged Absent Without Leave (AWOL) for two days (November 20 and 21, 2008) when she had called in to request sick leave and she was accused of not following leave procedures;
2. in December 2008, she discovered that she was charged AWOL when she inadvertently requested annual leave for two days instead of three days, and her supervisor did not approve her retroactive leave request for July 31, 2008;
3. in December 2008, she noticed that her leave requests in conjunction with the holidays were all denied;
4. on or about February 9, 2009, she received a written counseling dated February 3, 2009, originally citing three events, which was later modified to remove an incident;
5. on or about February 9, 2009, her supervisor criticized her work at least once a week;
6. on or about February 9, 2009, her government cell phone was removed after she became ill at work;
7. on or about February 9, 2009, she requested to go to Employee Health and was told that she was making a pattern of going to Employee Health before her day off;
8. on or about February 9, 2009, she was told that she was taking too much military time and she was requested to provide information about her military supervisory so that he could be contacted;
9. in February 2009, her supervisor told her she was developing a pattern of leave usage although no pattern was identified;
10. in May 2009, she found written documentation in a patient's record that implied the inability of staff to reach her regarding the patient and that another co-worker had to answer her call;
11. in May 2009, she received an email accusing her of failing to meet with a physician to discuss the improvement of her work performance;
12. on or about May 27, 2009, her supervisor denied her request to attend the National Case Manager's Conference;
13. on or about June 15, 2009, her supervisor accused her of delaying a patient's discharge to a nursing home;
14. on or about July 10, 2009, she discovered she was charged AWOL for 16 hours of military leave requested, even though her military leave request was approved prior to her departure;
15. on or about August 4, 2009, her supervisor denied her leave request to attend a Diabetes conference so that she could maintain certification;
16. on or about August 7, 2009, her supervisor denied her request to attend a Case Manager's conference; and
17. on or about September 11, 2009, she received a peer review on a case where she was accused of not having a discharge plan, and ordering the wrong equipment even though the patient was transferred just hours before his discharge and the equipment had been previously ordered by Prosthetics.1
On July 24, 2009, the Agency issued a partial dismissal. Therein, the Agency accepted claims 4 - 17 for investigation. However, the Agency dismissed claims 1 - 3 on the grounds of untimely EEO Counselor contact.
After the investigation of claims 4 - 17, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant subsequently withdrew her request. Consequently, the Agency issued a final decision on January 9, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its January 9, 2012 final decision, the Agency determined that it properly dismissed 1 - 3 on the grounds of untimely EEO Counselor contact in its July 24, 2009 partial dismissal. The Agency determined that Complainant's initial EEO Counselor contact occurred on February 18, 2009, which it found to be beyond the 45-day limitation period. The Agency found, however, because claims 1 - 3 are linked to claims 4 - 17, claims 1 - 3 would nevertheless be used as background information to determine whether Complainant was subjected to harassment.
The Agency then addressed 1 - 17 on the merits, finding no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race and retaliation. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The Assistant Chief of Performance Improvement, also Complainant's second level supervisor (S2), denied subjecting Complainant to harassment. S2 stated that in February 2009, she gave Complainant a written counseling for making personal long distance telephone calls while on duty, failing to obtain a release of information from a patient, and failing to inform her of her schedule time off. S2 stated that during the relevant period, the medical staff was concerned about the delay in getting the patient out of the hospital and they did not feel that Complainant was doing as much as she could do to move the process forward.
Further, S2 stated that during the course of Complainant's employment, "there have been a number of issues with leave. We do have policies in place and she was informed of the policies of the need to contact her immediate supervisor or designee and request leave...over a number of times during the past two years I have had to discuss this issue with [Complainant]. And she has been charged AWOL when she does not follow procedures." S2 stated that for instance, Complainant was charged AWOL on July 31, 2008 because "she just didn't come to work. Leave is to be requested in advance and she did not contact a supervisor in advance. She just did not come to work that day." S2 further stated that Complainant was charged AWOL for November 20 and 21, 2008 because she did not discuss her leave usage with her. S2 stated that although Complainant left a message on a management official's voice mail, "she did not contact anyone in person."
S2 stated that on June 22, 2009, Complainant requested annual leave for June 25-29, 2009. S2 stated that she denied Complainant's request "due to staffing." S2 stated that on June 25, 2009, Complainant contacted the Service Chief by telephone and told him that she was called for emergency Reserve Duty and would not be in work that day. Complainant had told the Service Chief that she would fax the military orders to him. S2 further stated that on June 26, 2009, Complainant "did not call to request leave and she did not report for duty. On 6/29 and 6/30, she called and requested sick leave which was approved. She talked to me and I approved it. Upon her return on 7/1, she entered her leave request and was informed of the need for the orders which she had not faxed since, you know, 6/25. And she did not submit those orders - I think it was July 6th - the timecard at that time was changed from AWOL to approved leave. So, as soon as we go the orders, it was change[d]."
With respect to Complainant's allegation that she was told she was taking too much military time and was asked to provide information about her military supervisor so he could be contacted, S1 stated "it was incorrect." Specifically, S2 stated that she and Complainant discussed her military time "because of the high volume of use. And because it would be sprung on the spur of the moment and she wouldn't have orders presented...it makes it difficult to plan patient care assignments...the multiple changes in the dates make it very difficult for us, you know, to cover as well. So it wasn't - it wasn't a problem with her, you know, being in the military and using the leave. It was the communication and her giving us the correct information about the dates she needed."
S2 stated that while she has twenty case managers, Complainant received "the same feedback" as other case managers. S2 stated, however, Complainant "has received numerous complaints from the medical staff who feel she does not provide them good service on a day-to-day basis." S2 stated that she met with Complainant several times "just to talk about the issues and to try to help her identify ways she could, you know, improve her service to the, you know, patients and medical staff."
S2 stated that Complainant's government cell phone was not taken away from her after she became ill at work. S2 stated that at that time a new employee needed a cell phone because he would be going back and forth between two facilities. S2 stated "our IT Department told me they didn't have enough to assign him ma new one, that I would have to take one from my previous staff and give it to him. And since [Complainant] hadn't returned hers previously, we asked her to return it so that we could give that Blackberry to [new employee] who is an African-American also." S2 stated that at that time, Complainant "had a desk, a phone, a computer. She had had it more than a year and didn't really need the Blackberry."
With respect to Complainant's allegation that in May 2009, she received an email accusing her of failing to meet with a physician to discuss improvement of her work performance, S2 stated "actually, [Complainant] had asked for specific feedback from the medical staff as to what she could do to improve her ability to meet their needs and the needs of their patients. And they had provided that information. And she just responded very negatively to them."
S2 stated that in May 2009, no one was approved to attend the National Case Managers conference. As for Complainant's request to attend a Diabetes Conference so that she could maintain certification, S2 stated that Complainant's request was denied "due to staff. There were already two case managers off that week and we had two vacancies and our workload was high. I will say she did not request it specifically for education, but it wouldn't have matter because of the staffing issue. I will say that any National Certification usually has a time frame like two to three years, or five years that you have a time period to earn your CEUs. So, I can't imagine that whatever certification that [Complainant] has - - which I'm not aware of this certification - I just can't imagine that this one meeting - you know, that that certification hinged on that one meeting - that I was unaware of any education she was wanting to do to."
With respect to Complainant's allegation that her request to attend the Case Manager's conference was denied, S2 stated that Complainant requested annual leave for August 20 and 21, 2009 but "she did not indicate it was for a conference. She was told that due to staffing, you know, we would be unable to let her go."
Regarding Complainant's allegation that she received a peer review on a case where she was accused of not having a discharge plan and ordering the wrong equipment even though the patient was transferred just hours before his discharge and the equipment had been previously ordered by Prosthetics, S2 stated that "peer reviews are referred for cases for all disciplines. It is a quality improvement process. The individual is not accused of any wrongdoing and they are provided an opportunity for feedback. The case, you know, in question goes through a peer review committee where there is an interdisciplinary group that makes a final determination. So the case and [Complainant's] response will be considered by that interdisciplinary body and a final determination will be made."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency's final decision finding no discrimination "is flawed and indicate a rush to move paperwork forward without adequately exploring my complaint...dismissing my case on the basis of 'fails to demonstrate by a preponderance of the evidence that she was discriminated against' is totally unacceptable."
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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 Construction 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 Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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 Center 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including 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 v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her race and prior protected activity.
Complainant, on appeal, has provided no persuasive arguments indicating any error in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
August 15, 2012
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Brenda Adams
3326 Torremolinos Ave.
Doral, FL 33178
Rosa Franco, Deputy Assistant Secretary, Resolution Management
Office of Resolution Management (08D)
Department of Veterans Affairs
810 Vermont Ave., NW
Washington, DC 20420
__________________
Date
______________________________
Equal Opportunity Assistant
1 The record reflects that claims 12 - 17 were later amended to the instant complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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