0120113701
02-12-2013
Claudia McRoberts, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Claudia McRoberts,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113701
Agency No. 200H-0539-2010100225
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 15, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
On October 14, 2007, Complainant was hired as a Registered Nurse at the Agency's Mental Care Line, Veterans Affairs Medical Center facility in Cincinnati, Ohio, subject to a two-year probationary period.
On January 11, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the basis of disability (hypertension, high cholesterol, insulin dependent diabetes, renal failure, degenerative disk disease, hypothyroidism and macular degeneration in her left eye) when:
1. in August 2007, during her employment physical examination, the physician left the door open, and other employees could hear the discussion of Complainant's medical issues;
2. on April 11, 2009, she was issued a sick leave counseling letter;
3. on April 11, 2009, her verbal request to work days instead of nights was ignored;
4. on April 11, 2009, her supervisor told her that she was a burden to the entire staff and unit due to her sickness;
5. in April 2009, she was told by her Nurse Manager that she should be ashamed of herself for calling off sick;
6. in June 2009, management did not honor her approved Family Medical Leave Act (FMLA) leave;
7. in July 2009, she was issued a sick leave certification letter;
8. in October 2009, she received an unsigned performance appraisal via certified mail; and
9. on October 12, 2009, she was terminated from her position during her probationary period.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on June 15, 2011, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of disability discrimination because she never informed management of her disabilities.1 The Agency noted that Complainant maintained that management should have known about her medical conditions because she had a pre-employment physical. However, the Agency found that the results of that physical were not shared with management. Instead, the physician only informed management, pursuant to Agency policy, that Complainant was able to perform the duties for which she had been hired. Despite finding no prima facie case, the Agency nevertheless determined that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on disability. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant, on appeal, argued that the Agency erred finding no discrimination. Complainant argued that the absences for which she was terminated occurred during the time she was approved for leave under the FMLA. Complainant further argued that the Director of the Office of Employment Discrimination Complaint Adjudication failed "to mention or note is that these warnings came within the FMLA period, which effectively began February 3, 2009 and therefore the analysis for these absences should be conducted within the framework of FMLA. Management should have examined these within the context of FMLA; the proper medical records should have been requested and fully examined well before the complainant's termination."
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part 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 do not need to address Complainant's prima facie case as we find that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for its actions, as detailed below.
Complainant's first line supervisor denied subjecting Complainant to a hostile work environment. The supervisor stated that on April 11, 2009, he issued Complainant sick leave counseling for her extensive leave. The supervisor stated that he gave Complainant several counselings, but that Complainant's attendance did not improve. The record reflects that the management had no knowledge concerning Complainant's claim that during her employment physical examination, the physician left the door open and other employees could hear the discussion of her medical issues.
With respect to Complainant's allegation that her request to work days instead of nights was ignored, the supervisor denied it. Specifically, the supervisor stated that he asked Complainant "if she wanted to do that immediately or if she wanted to wait until the end of posted time. And she said she wanted to wait until the end on posted time."
In regard to Complainant's allegation that management did not honor her approved FMLA leave, the supervisor similarly denied this assertion, and the record reflects that Complainant's FMLA had been approved in June 2009.
The supervisor acknowledged sending Complainant's performance appraisal via certified mail because she was not at work. The supervisor stated that he and the Chief Nurse of the Mental Care line signed the appraisal, but Complainant did not sign it.
The Chief Nurse of the Mental Health Care line, also Complainant's second line supervisor, stated that he and Complainant's supervisor recommended that Complainant be terminated during her probationary period. The Chief Nurse stated, at that time, Complainant did not report to work and would not let management know when she was planning to return to work. The Chief Nurse stated that he sent a request to the Summary Professional Standards Board to review Complainant's extensive leave usage. The Chief Nurse stated that following a review of Complainant's case, the board came to a conclusion that Complainant should be terminated during her probationary period.
The Chief Nurse stated that Complainant "developed a pattern where she was always off on leave with her days off...then she'd be off for weeks at a time. Then I got the call from the physician that she wouldn't be back for several weeks. That's when I tried to contact her to find out, 'well, when do you think you'll be back so we can plan?'" The Chief Nurse stated that he sent Complainant a letter asking her when she planned to return to work but did not receive a response. The Chief Nurse stated that another reason Complainant was terminated was "her [in]ability to complete work in a timely manner; her disorganization; she was forgetting things." The Chief Nurse stated that Complainant was counseled "multiple" times concerning her performance and leave usage.
The Labor Relations Specialist (Specialist) stated that Complainant was terminated during her probationary period based on the Summary Processional Standard Board's summary review of her performance. Specifically, the Specialist stated that the purpose of the board "is to evaluate whether or not an individual during [his or her] probationary period should be separated or retained for conduct or performance issues. And that's primarily for Title 38 employees. That is why the boards are convened." The Specialist stated that during the relevant period, he served as a technical advisor to the board and assisted them "with regard to procedural matters, making sure they are in compliance with the VA Handbook."
The Specialist stated that the board concluded that Complainant had "excessive absences for which she did not have sufficient leave to cover and/or staffing work, would not allow to be approved. It says the employee's absences were not covered under the Family Medical Leave Act." The record reflects that the subject extensive absences occurred prior to the June 2009 approval of Complainant's FMLA request.
The Chair of the Summary Professional Standards Board stated that S1 sent a letter to the board requesting a review of Complainant's extensive leave usage. The Chair stated that the board interviewed Complainant and her supervisors. The Chair stated that during her interview, Complainant was confused about the dates she used sick leave and did not have documentation to support her absences. The Chair stated that the board came to an agreement that, "the time documented on [Complainant's] leave sheet prior to FMLA was excessive." Following a review, the board made a recommendation that Complainant be terminated during her probationary period.
One of the members of the Summary Professional Standards Board stated that the board interviewed Complainant and her supervisor concerning her extensive leave absence. Specially, the board member stated "there were a few dates that were in question and we did not include those as part of our - - the hours we felt were not covered until FMLA...because there was no real clear documentation, [Complainant] couldn't tell us for sure, so - - and it was questionable whether there were - - there were certain pieces that were FMLA." Furthermore, the board member stated that the board came to a conclusion that Complainant's leave documented prior to FMLA was "excessive."
After careful review of the record, we conclude that 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, for the same reasons already articulated, we find that the evidence of record does not support a finding that the harassing incidents alleged by Complainant occurred because of her disability.
CONCLUSION
Complainant has provided no persuasive arguments indicating any improprieties 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
February 12, 2013
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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