0120130521
09-25-2014
Complainant v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130521
Hearing No. 430-2011-00321X
Agency No. 2004-0558-2010104751
DECISION
On October 30, 2012, Complainant filed an appeal from the Agency's September 14, 2012, final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).1 For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence of record supports the Administrative Judge's decision that Complainant failed to prove that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race and sex.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health Technician, GS-6, at the Durham VA Medical Center (DVAMC) Community Based Outpatient Clinic (CBOC) in Greenville, North Carolina. On December 20, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and sex (female) when, on August 27, 2010, the Nurse Manager yelled at her, told her that she needed to leave the building, and charged her with being absent without leave (AWOL) from 11:15 a.m. to 3:00 p.m. after she left the workplace.2
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). Complainant timely requested a hearing, and the AJ held a hearing on June 7, 2012. On August 31, 2012, the AJ issued a decision in favor of the Agency.
The AJ found the following facts. Complainant worked as a phlebotomist in the CBOC laboratory. The Nurse Manager was her first-level supervisor. Due to an on-the-job injury, Complainant received a light-duty assignment answering telephones in the Call Center and used an ergonomic chair. On August 27, 2010, because the laboratory was short staffed, the Nurse Manager instructed the Charge Nurse to direct Complainant to print labels in the laboratory.
Complainant testified that the Charge Nurse interrupted her during a telephone call with a patient and told her to go to the laboratory to print labels. After Complainant finished the telephone call, she began to move her chair to the laboratory. She encountered the Nurse Manager, who loudly stated that she wanted to speak with Complainant. Complainant put her chair in the laboratory and met with the Nurse Manager in a small room across the hall.
According to Complainant's testimony, the Nurse Manager "jumped right in [her] face," repeatedly asked her who did she think she was, and spit in her face. When Complainant grabbed the door knob, the Nurse Manager pushed her hand off the door, blocked the door, and prevented Complainant from leaving. Complainant asserted that the Nurse Manager held her hostage and told her to stay in the room, to listen, and to do as instructed. When the Nurse Manager backed up, Complainant left the room and the Nurse Manager told her to "leave my building." Complainant testified that she "went straight" to the office of the RN Care Manager, who told Complainant to calm down and to contact the union. After she calmed down, Complainant called the union representative, who told her to leave the building as instructed. The Nurse Manager stood behind Complainant during the telephone call.
The AJ noted that Complainant's testimony differed from the statements that she made in her formal complaint and affidavit. In her complaint, Complainant did not state that the Nurse Manager pushed her hand off the door or touched her. She stated that she "walked to the door and opened it just slightly before [the Nurse Manager] put her hand on the door and slammed it," that she immediately left the room, that she told the Charge Nurse that she did not appreciate the Charge Nurse telling lies about her, and that she went to the Call Center to call her union representative. According to the complaint, the Nurse Manager followed Complainant to the Call Center and, while Complainant was talking with the union representative, told Complainant, "You need to leave the building." In her affidavit, Complainant stated that she told the Nurse Manager that she would leave as soon as she spoke with the union representative, that the Nurse Manager stood behind her while she called the union representative, and that the union representative told her to go home.
In her affidavit, Complainant alleged that the Nurse Manager had "an attitude problem against black people." She asserted that the Nurse Manager listened only to the Charge Nurse and never listened to what Complainant had to say because she is black. Complainant also asserted that the Nurse Manager had been nasty to her ever since she sustained an on-the-job injury.
Complainant's husband testified that Complainant called him, that she told him that the Nurse Manager had attacked her, and that she was "hysterical." The RN Care Manager testified that Complainant was not acting like herself, was "out of control," and was "just crying, couldn't talk." She also testified that the Nurse Manager "had a different management style," did more favors for some employees than for others, and treated a white Care Manager (Employee 1) better than she treated some black Care Managers.
The Nurse Manager testified that the Charge Nurse told her that Complainant was not going to the laboratory because she had to call the union. The Nurse Manager went to the Call Center and motioned for Complainant to come to talk to her, Complainant followed and brought her chair with her, and the two of them went to a small room to talk. The Nurse Manager asked if Complainant was refusing an assignment. Complainant said that she was not refusing an assignment, that she had not told the Charge Nurse that she would not go to the laboratory, and that she instead had told the Charge Nurse that she had to call the union. The Nurse Manager stated that she could send Complainant home if she refused an assignment. According to the Nurse Manager, Complainant became "extremely excited," was "very animated" and "very loud," and "was yelling almost constantly." The Nurse Manager testified that the door was closed, that Complainant put her hand on the door handle, that the Nurse Manager put her hand on the door to prevent it from hitting her when it opened, and that "the door snapped shut." She then stepped aside and followed Complainant to the Call Center, where Complainant called a union representative.
The Nurse Manager further testified that she left the Call Center and then returned to look for Complainant. An employee told her that Complainant had gone home. The Nurse Manager called her supervisor, the Assistant Chief Nurse, who told the Nurse Manager to charge Complainant with being absent without leave (AWOL). Shortly after that, the union representative called the Nurse Manager to discuss what had happened. The union representative stated that Complainant could not be charged with AWOL because she thought that the Nurse Manager had sent her home. The Nurse Manager testified that she told the union representative "that wasn't my intention, but I can see how [Complainant] could have misunderstood in all the hub-bub, and the loudness . . . ."
In addition, the Nurse Manager stated that Employee 1 had an informal agreement with a previous supervisor regarding her work schedule, that she permitted Employee 1 to continue the agreement for approximately three months, and that she had allowed other employees to adjust their schedules. She noted, for example, that she had allowed Complainant to change her duty hours in the laboratory in February 2010.
The Nurse Manager testified that she counseled Complainant and other employees about work assignments as well as time and attendance matters. The record contains a copy of a written admonishment that the Nurse Manager issued to a black male in August 2010 and documentation regarding a verbal counseling that she gave to a white female in April 2011.
The Agency initially charged Complainant with being AWOL on August 27, 2010, from 11:15 a.m. to 3:30 p.m. The Nurse Manager changed the AWOL to Authorized Absence. According to a "Corrected T&A History," the AA was changed back to AWOL "per instructions of member's supervisor's supervisor." At some point, the Agency removed the AWOL charge.
In her decision, the AJ concluded that Complainant did not prove that the Agency discriminated against her or subjected her to a hostile work environment on the basis of race or sex. She found that Complainant failed to establish that the Agency subjected her to disparate treatment when it issued the August 27, 2010, AWOL charge. Noting that Complainant left work without requesting or being approved for leave and that the Assistant Chief Nurse instructed the Nurse Manager to charge Complainant with AWOL, the AJ determined that the Agency articulated a legitimate, nondiscriminatory reason for its action. The AJ also determined that Complainant did not show that the articulated reason was a pretext for discrimination. Although Complainant asserted that her race and sex motivated the Nurse Manager's treatment of her, she offered no evidence that the AWOL charge resulted from anything other than her departure from the facility.
The AJ also concluded that Complainant failed to establish a prima facie case of a discriminatorily hostile work environment. Given Complainant's inconsistent statements, the AJ declined to conclude that the Nurse Manager physically assaulted Complainant. The AJ found that a heated verbal confrontation took place between the Nurse Manager and Complainant and that the incident occurred because of a conflict between their communication styles. She noted that each of them misunderstood what the other person was saying and that they could not communicate effectively. The AJ also found that the evidence did not support Complainant's assertion that the Nurse Manager was racist and treated white employees better than she treated black employees. Accordingly, the AJ concluded that Complainant failed to show that the Agency's actions were based on a prohibited reason.
On September 14, 2012, the Agency issued a final order fully implementing the AJ's determination that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
Complainant raises no arguments on appeal. The Agency argues that the AJ correctly concluded that Complainant failed to show that the Agency discriminated against her or subjected her to a hostile work environment based on race or sex.
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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether 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. See 29 C.F.R. � 1614.405(a). An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
AWOL Charge
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
Upon review, we find that substantial evidence of record supports the AJ's decision. As the AJ noted, the Agency articulated a legitimate, nondiscriminatory reason for its action. The Assistant Chief Nurse told the Nurse Manager to charge Complainant with being AWOL because Complainant left work after the incident with the Nurse Manager. After the union representative informed the Nurse Manager that Complainant left work because she believed that she had been sent home, the Nurse Manager changed the AWOL to Authorized Absence. She changed the AA back to AWOL because the Assistant Chief Nurse instructed her to do so.
Complainant has not shown that the Agency's articulated reason is a pretext for race or sex discrimination. The evidence establishes that the Agency initially charged Complainant with being AWOL because Complainant left work. The Nurse Manager changed the AWOL to AA after she realized that Complainant might have misunderstood what she had said, and the AWOL charge was reinstated per the Assistant Chief's instruction. At some point, the Agency removed the AWOL charge. Complainant has not shown that the Agency's reasons for issuing the AWOL charge are unworthy of credence. Further, there is no evidence that considerations of race or sex motivated the decision to charge Complainant with being AWOL.
Hostile Work Environment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all 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 , 510 U.S.at 23.
To establish a claim of harassment based on race or sex, Complainant must show that: (1) she is a member of the statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris, 510 U.S. at 21. The harasser's 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 (Mar. 8, 1994) (Enforcement Guidance on Harris).
We find that substantial evidence of record supports the AJ's determination that Complainant failed to prove that the Agency subjected her to a hostile work environment because of her race or sex. As the AJ noted, Complainant has not shown that discriminatory animus motivated the Agency's actions. The record establishes that the Nurse Manager and Complainant engaged in a verbal confrontation because they misunderstood each other and failed to communicate effectively, not because of Complainant's race or sex. Similarly, as noted above, the record does not support Complainant's assertion that her race or sex motivated the issuance of the AWOL charge. Accordingly, we affirm the AJ's conclusion that Complainant did not establish that she was discriminated against as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, which implemented the AJ's finding of no discrimination.
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
September 25, 2014
Date
1 On October 30, 2012, Complainant's attorney filed this appeal and stated that the Agency had not yet issued a final order in the matter. The record contains a copy of the envelope in which the Agency mailed its September 14, 2012, final order to the attorney via certified, return-receipt mail. The envelope contains an October 25, 2012, stamp stating that it was "unclaimed" and "return to sender." The Agency does not contest the timeliness of the appeal.
2 Complainant also alleged that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race and sex when, on August 27, 2010, the Nurse Manager changed her work hours. Complainant withdrew that claim at the hearing on her 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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