01a45530
12-22-2005
Cheryl Berman, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Cheryl Berman v. Department of Veterans Affairs
01A45530
December 22, 2005
.
Cheryl Berman,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A45530
Agency No. 200M-02-104654
Hearing No. 320-2003-08457X
DECISION
JURISDICTION
On June 24, 2004, complainant filed an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On appeal, complainant requests that the Commission reverse the agency's
acceptance and implementation of an EEOC Administrative Judge's (AJ)
finding of no discrimination. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Diabetes Education Coordinator, GS-11, at the Omaha, Nebraska
Medical Center. Complainant contended that in December of 2001, her
supervisor (D.O.B. 10/1/53) asked her how old she was and she stated
her age. Thereafter, complainant stated that her supervisor began to
build a case against her.
Complainant stated that she was assigned to do additional consulting
after one of the nurses left. She contended that she was working
excessive hours. She contended that she requested assistance, but it
was never provided. She stated that her supervisor refused to permit
her to attend an out-of-town meeting in New Orleans. Complainant stated
that she contacted the Under Secretary for Health and let him know that
her supervisor refused to allow her to attend. Later, in responding an
inquiry by an agency official regarding funds that had been allocated for
the New Orleans trip, complainant sent copies of emails to the hospital
director and others in her chain of command. She stated that she did
not feel that she was bypassing the chain of command by including her
superiors on the email copies but that the agency suspended her.
She stated that the Human Resources Specialist in classification performed
a desk audit on her position and found that her position was properly
classified as a GS-11 but recommended that the position description be
rewritten. The record reveals that the position description (PD) was
revised by the Human Resources Specialist who removed some supervisory
duties, central office duties and other duties. Complainant contended
that the position was administrative but that the Human Resources
Specialist felt that the position was mostly clinical, meaning seeing and
educating patients. The Human Resources Specialist concluded that the
position was properly classified at the GS-11 level in October of 2002.
He stated that there were no classification guidelines for the Diabetes
Educator position so he had to perform extensive research on her position
to determine at what grade complainant should be classified.
Complainant contended that she saved the Medical Center $80,000 and
was not given an award. She stated that she was told to fill out two
forms with her performance appraisal, one of which concerned awards.
She stated that filling out the form led her to believe that she was
being given an award when she was not. Complainant requested an office
on the 9th floor but was offered space on the 1st floor.
On June 6, 2002, complainant initiated EEO contact and filed a formal
complaint on September 23, 2002, alleging that she was discriminated
against and harassed on the basis of age and in reprisal with respect to:
Performance appraisal;
Award;
Position description;
Position re-description and reclassification;
Mid-year appraisal forms;
Assignment of work space;
Time and attendance;
Purchase of equipment;
Reprimand;
Suspension;
Training;
Increase in workload;
Written counseling; and,
Denial of a training course and attendance at meetings.
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 bench
decision finding no discrimination on the bases of age or in reprisal
for previous EEO activity.
In his decision, the AJ found the complainant failed to establish a prima
facie case of age discrimination because she was unable to establish that
a similarly situated younger employee was treated better then herself.
With respect to complainant's contention that her supervisor asking
her what her age was showed age discrimination, the AJ found that the
supervisor did not make any derogatory comments regarding age and was
only a year younger than complainant and, therefore, complainant failed
to raise an inference of age discrimination.
The AJ found that complainant did establish a prima facie case of
reprisal. Further, the AJ found that the agency articulated legitimate
reasons for its treatment of complainant. Specifically, the AJ found that
complainant's supervisor could not find evidence that complainant saved
the facility $80,000.00 and, therefore, did not nominate complainant
for an award. The AJ found that complainant's supervisor stated that
he did not believe that her participation in national committees should
be part of her PD because subsequent incumbents of the position may or
may not participate in such committees.
The AJ found that the Human Resources Specialist stated that complainant
was classified as a GS-11 as a result of his desk audit. The AJ noted
that complainant's supervisor stated that complainant's duties were
categorized as a clinical because her primary duties consisted of caring
for and educating patients. The AJ found that complainant's supervisor
stated that she was not given the office she requested because it was
occupied by another employee who had been loaned to the ambulatory care
department on a temporary basis.
The AJ found that complainant's supervisor stated that all her employees
were required to notify her upon leaving the medical center because of
workers compensation rules. The AJ found that complainant's supervisor
denied complainant's request to purchase the continuous glucose monitoring
system because it was outside complainant's scope of practice, as she
was an educator, not a provider. He stated that the system would have
required her to insert the probe into the patient. The AJ found that
complainant's supervisor initially denied her request to attend a case
management conference in Sioux Falls, South Dakota because she did
not have the annual status report and had not arranged for coverage in
her absence. After these issues were addressed, she stated that she
approved the conference.
The AJ found that complainant's supervisor stated that complainant was
issued a written conduct counseling memo because she had not followed
the chain of command in sending an email to her second level and higher
superiors. The AJ found that complainant's supervisor issued complainant
a proposed suspension because she directly emailed the director without
first presenting the issue to her.
As evidence of pretext, the AJ found that complainant stated that prior
to her EEO activity she was allowed to attend national meetings and
conferences. The AJ found that it was likely that complainant and her
supervisor had a bad relationship due to their personalities and that
complainant may have been over-managed. However, the AJ noted that
complainant's personality was at times defiant and confrontational.
The AJ concluded that complainant was unable to meet her burden to
prove that her supervisor was motivated by discrimination rather than
a personality conflict.
On appeal, complainant reiterates arguments made at her hearing.
Complainant raises new allegations of age discrimination and reprisal with
respect denial of leave and promotion. The agency makes no contentions
on appeal.
STANDARD OF REVIEW
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.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973). First, complainant must establish a prima
facie case 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. McDonnell Douglas, 411 U.S. at 802. Next, the agency must
articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the complainant must prove,
by a preponderance of the evidence, that the legitimate reason proffered
by the agency was a pretext for discrimination. Id. at 256.
With respect to complainant's claim of retaliation, complainant can
establish a prima facie case of reprisal discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that:
(1) he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Initially, we find that issues (1), (2) and (5) should be examined
together as they essentially concern events the denial of an award.
Specifically, complainant alleged that she was not given an award for her
accomplishment, her saving the agency $80,000.00, that she was required
to fill out forms along with her performance appraisal and that she
was not given credit for her accomplishment in her mid-year appraisal.
Assuming, arguendo, that complainant established a prima facie case of
age discrimination and reprisal, we find that the agency articulated
legitimate nondiscriminatory reasons for not giving complainant an
award. Complainant's supervisor stated that she adopted complainant's
self-appraisal word-for-word except for her claim that she had saved the
agency $80,000.00. Because she could not verify the statistics used to
calculate the savings, she did not include the alleged savings in her
performance appraisal nor did she nominate complainant for an award.
Complainant failed to submit any evidence showing that she solely was
responsible for $80,000.00 or any other evidence of pretext concerning
these claims.
We find that issues (3) and (4) concern the agency's ongoing
failure to reclassify complainant's position description and will be
addressed together. We agree with the AJ that the agency articulated a
legitimate nondiscriminatory reason for not reclassifying the position.
Specifically, the Human Resources Specialist stated that he performed
a desk audit of complainant's position and determined that she should
be classified as a GS-11, the grade she currently occupied. He stated
that as a result of a difference of opinion between complainant and
her supervisor regarding her job duties, he recommended that the PD
be re-written to accurately reflect the job duties. While the Human
Resources Specialist stated that there were no written guidelines for
classifying complainant's position, complainant did not provide any
evidence that his subjective rating was influenced by her age or in
reprisal for previous EEO activity. Further, complainant did not submit
evidence showing that she was performing higher level work.
With respect to issue (6), assuming, arguendo, that complainant
established a prima facie case of age discrimination and reprisal, we
find that the agency articulated legitimate nondiscriminatory reasons
for not assigning complainant the office she requested on the 9th floor.
Specifically, complainant's supervisor stated that complainant was not
offered the 9th floor space because it was assigned temporarily to another
office and was occupied by another employee. Complainant did not provide
any evidence that the denial of the office space was influenced by her
age or in reprisal for previous EEO activity.
Concerning issue (7), we find that complainant failed to established
a prima facie case of age discrimination or reprisal. Specifically,
was unable to show that she was treated differently that others outside
her protected categories. The record reveals that all employees were
required to notify their supervisors when leaving the agency campus.
A younger employee who had no previous EEO activity, stated that he was
required to notify his (complainant's) supervisor prior to his leaving
the agency campus.
With respect to issue (8), assuming, arguendo, that complainant
established a prima facie case of age discrimination and reprisal, we
find that the agency articulated a legitimate nondiscriminatory reason for
not permitting complainant to purchase the continuous glucose monitoring
system. Complainant's supervisor stated that she was not given permission
to purchase the system because it was outside complainant's scope of
practice, as she was an educator, not a provider. She stated that the
system would have required her to insert the probe into the patient.
Complainant did not provide any evidence that her supervisor's refusal to
permit complainant to purchase the continuous glucose monitoring system
was influenced by her age or in reprisal for previous EEO activity.
Concerning issue (9), assuming, arguendo, that complainant established
a prima facie case of age discrimination and reprisal, we find that the
agency articulated legitimate nondiscriminatory reasons for reprimanding
complainant. Specifically, complainant's supervisor stated that, on
February 13, 2003, complainant sent an email to upper level managers
stating that the Medical Center would lose it's ADA recognition because
her PD had been changed. She stated that this was in violation of her
previous instructions to complainant to follow the chain of command.
Complainant does not dispute that she forwarded copies of emails to her
upper level supervisors in violation of her supervisor's instructions.
We agree with the AJ's finding that complainant was defiant in that she
refused to obey her supervisor's orders to follow the chain of command
in her communications with management. Complainant has been unable to
show evidence of pretext.
With respect to issue (10), assuming, arguendo, that complainant
established a prima facie case of age discrimination and reprisal, we
find that the agency articulated legitimate nondiscriminatory reasons
for suspending complainant. Specifically, complainant's supervisor
stated that complainant sent an email to the director on July 7, 2003,
which she had been warned not to do. We agree with the AJ's finding
that complainant was defiant of her supervisor in that she refused
to obey her supervisor's orders to follow the chain of command in her
communications with management. Complainant does not dispute that she
forwarded copies of an email to her upper level supervisors against her
supervisor's instructions. Complainant has been unable to show evidence
of pretext or that her supervisor was retaliated against her because of
her previous EEO activity.
We find that issues (11) and (14) should have been consolidated into one
issue as they overlap. Assuming, arguendo, that complainant established
a prima facie case of age discrimination and reprisal, we find that the
agency articulated legitimate nondiscriminatory reasons for denying
complainant training and her attendance at meetings. Complainant's
supervisor stated that with respect to the South Dakota Case Management
Conference, complainant was required to secure coverage and complete the
annual conference report. Once those tasks were completed, complainant's
supervisor stated that she was permitted to attended the conference.
Complainant was unable to establish that the reason articulated by
the complainant's supervisor for denying her attendance at the South
Dakota Conference was not valid but were a pretext to mask unlawful
discrimination.
We note that issue (12), complainant's workload being increased was not
addressed by the AJ. We find that the agency articulated a legitimate
nondiscriminatory reason for its treatment of complainant. Complainant's
supervisor stated that she assigned complainant additional work because
one of her nurses left. She stated that complainant was given some of her
diabetes training duties and other nursing duties were shifted to nurses.
Complainant was unable to establish that the reason articulated by the
agency was unworthy of belief
With respect to issue (13), assuming, arguendo, that complainant
established a prima facie case of age discrimination and reprisal, we
find that the agency articulated legitimate nondiscriminatory reasons
for issuing complainant a written counseling memorandum. Complainant's
supervisor stated that complainant met with her and her chain of command
because she had sent the entire chain of command an email regarding
her denial to attend a diabetes advisory field group conference in New
Orleans, Louisiana. At the meeting, complainant's supervisor stated
that her supervisor told complainant that she was not to address issue
through the chain of command and as a result, she issued complainant
the written conduct memorandum. Complainant does dispute that she sent
the entire chain of command the email copy. Here again, we find that
complainant failed to show evidence of pretext.
We agree with AJ that complainant was unable to establish that the
reasons articulated by the agency were not valid but were a pretext
to mask unlawful discrimination. Complainant contended that she had
to fill out forms on her appraisal and to notify her supervisor when
she left the medical campus. However, a younger employee with no EEO
activity was also required to complete the forms and notify complainant's
supervisor when he left the facility.
With respect to complainant's contention that she harassed, we find that
the AJ correctly found that there was no evidence that complainant was
harassed on the bases of her age or in reprisal for her EEO activity.
With respect to complainant's contention that her supervisor asking her
what her age was showed age discrimination, we agree with the AJ who
found that the supervisor, who was one year younger than complainant,
did not make any derogatory comments regarding age and therefore,
complainant failed to raise any inference of age discrimination.
Finally, we note that complainant raises new allegations of discrimination
and reprisal on appeal. Complainant is advised that if she wishes to
pursue the additional allegations she raised for the first time on appeal,
she should initiate contact with an EEO Counselor. The Commission will
not accept a new claim raised on appeal.
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 conclude that complainant failed to present
evidence that any of the agency's actions were in retaliation for prior
protected activity or were motivated by discriminatory animus toward
complainant's age. We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, 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 22, 2005
__________________
Date