0120112014
05-07-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112014
Agency No. 200H05262009100583
DECISION
On February 24, 2011, Complainant filed an appeal from the Agency's January 28, 2011, final decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's FAD.
ISSUES PRESENTED
Whether the FAD properly found that Complainant was not: (1) subjected to discriminatory harassment based on her religion (Jewish) with respect to seven separate incidents between May 23, 2007 and September 11, 2007; (2) denied religious accommodations during those same seven incidents previously referenced because she was not allowed to use compensatory time off for her religious observances; (3) subjected to discrimination in reprisal for prior EEO activity when her performance in October and December 2008 was criticized; and (4) subjected to disparate treatment based on her religion when she was prohibited from serving as Acting Chief between December 2008 and June 2009, during the permanent Chief's absence.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Urologist in the Urology Practice at the Agency's James J. Peters VA Medical Center facility in Bronx, New York. On February 26, 2009, and amended on April 28, June 22, and July 15, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her as alleged in the statement of "Issues Presented" above.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Specifically, the decision concluded that Complainant failed to prove, and the evidence did not establish that the actions complained of in this case actually happened or constituted harassment in violation of federal EEO law. The decision reasoned that most of the conduct complained of appeared to be work-related differences that may have been unpleasant for the Complainant, but did not appear to be personally denigrating or insulting due to her religion or previous EEO related activity. Consequently, the decision found that Complainant failed to show that any of the conduct she complained of was based on her protected group.
With respect to Complainant's allegations that she was denied religious accommodation, the decision found that the record reflects that Complainant received reasonable accommodation for religious observance. A considerable majority of Complainant's requests for an authorized absence or administrative leave for religious holidays were granted. The record established that Complainant was required to take annual leave for three days in October 2008, and possibly two days in May 2007, but that her other requests were granted. The Commission notes that Complainant does not allege that she was ever denied permission to be absent for a religious occasion, but that on three or five occasions out of 19, she was not allowed her preferred form of absence.
With respect to Complainant's allegations her performance in October and December 2008 went down to "low satisfactory" in reprisal for prior EEO activity, the decision found that this allegation was false. Complainant's overall performance evaluation ratings for 2006, 2007 and 2008 were all "satisfactory" but there were fluctuations in one or more sub-categories due to increased processing delays and issues with staff. The Agency further found that there was nothing in the record to support Complainant's allegation that she was prohibited from serving as Acting Chief in the permanent Chief's (GM) absence between December 2008 and June 2009. GM stated that he assigned the other urologist to be Acting Chief on July 1st and 2nd (year unspecified) because he was going to be in the office on those days. With respect to any additional staffing arrangements, the decision found that that were to Complainant's advantage.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the record evidence is sufficient to establish that the Agency should be held liable for her claims of disparate treatment, and for failure to accommodate by discriminatorily applying the Religious Compensatory Time policy. Additionally, Complainant argues that there is more than enough evidence to support the allegations of harassing and retaliatory actions taken in denying her leave requests, generating reports of contact against her, and issuing her uncharacteristic below grade performance ratings.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first 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; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Denial of Religious Accommodation
Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. � 2000e(j); 29 C.F.R. � 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires an employee to demonstrate that: (1) he or she has a bona fide religious belief, the practice of which conflicted with their employment, (2) he or she informed the agency of this belief and conflict, and (3) the agency nevertheless enforced its requirement against the employee. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
Once an employee establishes a prima facie case, the Agency must show that it made a good faith effort to reasonably accommodate the religious beliefs and, if such proof fails, the Agency must show that the alternative means of accommodation proffered by the employee could not be granted without imposing an undue hardship on the Agency's operations. See Tiano v. Dillard Dept. Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corporation, 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989).
Pursuant to 29 C.F.R. � 1605.2(a)-(e), the Commission's "Guidelines on Discrimination Because of Religion" (the Guidelines), alternatives for accommodating an employee's religious practices include, but are not limited to, voluntary substitutes and swaps, flexible scheduling, and lateral transfers and job changes. Undue hardship does not become a defense until the employer claims it as a defense to its duty to accommodate. Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68-69 (1986). In order to show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).
Assuming that Complainant can establish a prima facie case of discrimination based on religious accommodation, we find that the Agency made a good faith effort to reasonably accommodate her. The record reflects that a considerable majority of Complainant's requests for authorized absence (AA) for religious observance purposes were granted. The record reflects that Complainant's requests for AA for religious observance were denied for May 23 and 24, 2007, and October 9, 14, and 15, 2008. The other 14 requests were granted. Complainant submits that the three urologists in the practice agreed that the Chief of Service (GM) would provide coverage for all Jewish holidays, and she and TG, the third urologist in the practice, would provide coverage for all federal holidays.
Record evidence suggests that Complainant's requests for AA were denied only when she had not earned the compensatory time that she was seeking to use for religious observance purposes. By letter dated July 25, 2008, in response to a letter to the Agency from Complainant's attorney, Complainant was advised of the proper manner in which religious compensatory time (RCT or AA) could be accrued. The letter stated that compensatory time could be accrued, when:
1) the work is outside of your usual tour of duty and being performed at the medical center, 2) you complete work outside your daily activities that you are capable of completing during your regular tour of duty, and 3) we agree on a project or plan that will benefit our veterans and/or the medical center.
The Chief of Service (GM) stated that Complainant had previously claimed compensatory time for reviewing and signing patient charts at home. GM stated that charts should have been reviewed and signed during the day to ensure that patients were receiving proper care. Another time Complainant claimed one hour of compensatory time for working through lunch when only one-half hour was allotted for lunch time. Additionally, Complainant was informed that compensatory time needed to be performed within three pay periods before or after the AA, but she was not doing this.
With respect to Complainant's allegation of being on call for urology emergencies outside of clinic hours when she was on administrative leave for religious purposes, the Agency states that Complainant was not on administrative leave during May 23 and 24, 2007, and she offered no evidence to rebut this fact. As previously noted, Complainant's request for an AA with the use of compensatory time on May 23 and 24, 2007 was denied. GM was scheduled to be away for a work related conference, and TG, the only other urologist in the practice, was out on leave and had been out the previous week. The residents provided coverage, but one of the urologists needed to be on call via beeper in case a patient needed to go into surgery. Complainant was never actually called.
The record makes clear that in most instances, Complainant was reasonably accommodated by the Agency for religious observance, and more often than not, received the specific accommodation requested. On occasion, Complainant was required to take annual leave instead of being allowed to utilize compensatory time off after being granted an AA. Based on these facts, Complainant cannot establish that the Agency failed to provide her with reasonable religious accommodations.
Reprisal
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. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Assuming, arguendo, that Complainant established a prima facie cases of discrimination based on reprisal, we find that the Agency articulated a legitimate, non-discriminatory reason for its decisions with respect to denying Complainant's request for AA, and reducing her performance ratings. We find that Complainant failed to demonstrate that any conduct on the part of the Agency was based on discriminatory animus. The record reflects that Agency management had very specific reasons, as set forth above, justifying the instances where Complainant's request to use AA were denied. Additionally, the decision to lower Complainant's performance rating was based on factors independent of the leave requests. Complainant was experiencing increased processing delays and problems with staff. She was also seeing significantly fewer patients than the other two urologists. With respect to not being assigned as Acting Chief, the record established that Complainant agreed to split this duty with the other urologist, and that he was assigned the Acting Chief duty on two occasions when he was the only person present in GM's absence. In light of the evidence in the record, we find that Complainant failed to establish she was subjected to discrimination based on reprisal.
Harassment
With respect to Complainant's contention that she was subject to a hostile work environment with respect to the matters set forth in his complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record in its entirety, including considerations of all statements submitted on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision because record evidence does not establish that discrimination as alleged 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
__5/7/15________________
Date
2
0120112014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112014