01a03353
12-22-2000
Delia Solis v. Veterans Affairs 01A03353 December 22, 2000 .Delia Solis, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Delia Solis v. Veterans Affairs
01A03353
December 22, 2000
.Delia Solis,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A03353
Agency No. 97-1054
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the reasons that follow,
we AFFIRM the final agency decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven, by
preponderant evidence, that she was discriminated against and subjected
to a hostile work environment on the bases of national origin (Hispanic),
sex (female), and age (over 40).
BACKGROUND
Complainant, employed by the agency as a Staff Nurse in the Surgical
Intensive Care Unit at the time of the alleged discriminatory events,
filed a formal complaint dated February 20, 1997, in which she alleged
what has been identified as the issue presented. Specifically, she
alleged that she was discriminated against when she received a letter
of counseling on September 23, 1996. She also alleged that the letter
of counseling was part of an ongoing pattern of harassment. To support
her harassment claim, she stated that her supervisor, the responsible
management official (RMO), touched her on the back while addressing her.
Complainant also alleged that male workers are treated more favorably
than their female counterparts in the granting of leave requests and that
she is assigned to work more 7:30 to 4:00 shifts than other employees.
Finally, she alleged that she was discriminated against on the basis
of age because there are very few nurses on staff over the age of 50.
The complaint was accepted for investigation. At the conclusion of the
investigation, complainant was provided with a copy of the investigative
file and informed of her right to elect either a hearing before an EEOC
administrative judge or an immediate final agency decision without a
hearing. When complainant failed to notify the agency of her election,
the agency issued a final decision. It is from that decision that
complainant appeals.
ANALYSIS AND FINDINGS
Disparate Treatment
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, 802-803 (1973). See also Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979) (applying McDonnell Douglas to age cases).
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(s) 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(s) proffered by the agency was a pretext
for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983). In this case, we find that the agency has stated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
stated that complainant was given a letter of counseling because
(1) on July 30, 1996, she failed to cooperate with the Respiratory
Therapist in changing an oxygen delivery system; (2) on August 6, 1996,
she requested that another nurse, who had conducted a narcotic wasting
procedure, to draw up the waste in a syringe; (3) on August 13, 1996,
she knowingly left a patient in his bowel movement; and (4) on August 20,
1996, she failed to assist the Narcotic Pharmacist even though she had
the narcotic keys. The RMO admitted that he touched complainant on the
back once while addressing her. But according to him, the touch was
not offensive and was done to get her attention. The RMO stated that
when she told him not to touch her, he never did so again. The agency
denied treating males more favorably in the granting of leave requests.
The agency also denied assigning complainant more 7:30 to 4:00 shifts
than other employees. In fact, according to the agency, complainant
chose her own hours with the exception of one 8 hour shift per pay period.
The agency provided documents and affidavits from several of complainant's
co-workers which lend credence to its stated reasons.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reason is merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,
complainant has failed to meet that burden. Complainant presented no
evidence which indicates that the agency's stated reasons are not true.
For that reason, we find that she has failed to prove that she was
subjected to unlawful discrimination.
Harassment/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. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will 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 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, 510 U.S. 17 (1993).
Complainant alleged that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show the existence of four elements: (1)
she is a member of a 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 the
statutorily protected class; and (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. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
In the present case, complainant contended that the letter of counseling,
the supervisor's touch on her shoulder, the favorable treatment that male
co-workers enjoyed over their female counterparts, the requirement that
she work more 7:30 to 4:00 shifts than other employees, and her belief
that there are very few staff nurses over the age of 50 constitute an
on-going pattern of harassment.
After examining information in the file, the Commission is not convinced
that male employees are treated more favorably than their female
counterparts. Nor are we convinced that complainant was forced to work
more 7:30 to 4:00 shifts than other employees. So, on those issues,
complainant failed to establish the existence of the second element.
Regarding the rest of the issues, the Commission is not convinced that
those events took place in an effort to harass complainant because
of her protected status. On those issues, she failed to establish the
existence of the third element. As such, we find that complainant failed
to establish a prima facie case of harassment.
CONCLUSION
Based on the foregoing, after a careful review of the record, including
complainant's contentions on appeal, the agency's response thereto,
and arguments and evidence not specifically addressed in this decision,
we hereby AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.