01a52501
12-12-2005
Delores G. Barber, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Delores G. Barber v. Department of Veterans Affairs
01A52501
December 12, 2005
.
Delores G. Barber,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52501
Agency No. 2001-0544-2003104562
Hearing
No. 140-2004-00267X
DECISION
On October 1, 2003, complainant, a Registered Nurse, Nurse II, Step 12,
in the agency's Surgical Service at the Dorn Medical Center filed a
formal EEO complaint in which she claimed that the agency subjected her
to harassment and disparate treatment on the bases of her sex (female),
race (Black) and in reprisal for her previous EEO activity under Title
VII, when:
1. Since the week of August 19, 2003, her supervisor communicated with
the clerk about her clinic instead of her.
2. On September 22, 2003, her supervisor reviewed her consults and
allowed the clerk to review her consults.
3. On January 9, 2004, the Chief of Surgical Service failed to contact
complainant after complainant requested a meeting with him.
4. On January 28, 2004, complainant's supervisor sent complainant an
e-mail stating that some of her peers had inquired to her about not
receiving an assignment sheet.
5. Complainant's supervisor plays the staff against each other, such as
sending complainant e-mail messages, but she talks to her White coworkers
one on one.
6. The secretary had the telephone center send complainant's Podiatry
patients' clinic cancellations to her personal e-mail instead of sending
them to the group mail.
The agency accepted the complaint for investigation.<1> Subsequent
to the investigation, complainant was notified that she had the right
to request either a hearing before an EEOC Administrative Judge or an
agency final action without a hearing. Complainant requested a hearing
before an EEOC Administrative Judge.
On January 5, 2005, the AJ granted the agency's Motion for Decision
Without a Hearing and issued a decision wherein she found that complainant
had not been subjected to discrimination. The AJ found that complainant
was not subjected to harassment in the form of unwelcome verbal or
physical conduct involving her race, sex or previous EEO activity or
that the harassment complained of was based on complainant's race,
sex or EEO activity. The AJ further found that the unwelcome conduct
at issue was work related. Additionally, the AJ found that these few,
isolated incidents, even if accepted as true, do not constitute activity
that is sufficiently severe or pervasive or so objectively offensive as
to alter or affect the conditions of employment.
On January 19, 2005, the agency issued a final action wherein it
determined that it would fully accept and implement the AJ's decision.
On appeal, complainant argues that none of her White coworkers had the
clerks making scheduling decisions or reviewing consults for them.
Complainant states that her White coworkers do not have to obtain
permission from the supervisor prior to making clinic changes.
Complainant argues that none of her White coworkers had the
telephone center sending the secretary/clerk personal e-mail about
scheduling/cancellations to their clinics. Complainant maintains that
her supervisors created a hostile work environment for her by subjecting
her to harassment and unwelcome verbal attacks.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases);
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 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. Texas Department
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 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
Harassment is actionable only if the incidents to which complainant
has been subjected were �sufficiently severe or pervasive to alter
the conditions of [complainant's] employment and create an abusive
working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998). To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) she belongs to 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).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of sex, reprisal and race discrimination.
Next, we shall consider whether the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant's supervisor
stated with regard to incident (1) she often communicated with all the
clerical staff without involving the nurses, not just complainant's
clerical support. As for incident (2), complainant's supervisor stated
that she conferred with the clerk for the Podiatry Clinic in regard to
a backlog of consults. According to complainant's supervisor, when she
learned that the consults were not being scheduled because complainant
had not reviewed them due to her being scheduled for official time off,
complainant's supervisor elected to review them herself to expedite
a time sensitive process. Complainant's supervisor denied that the
clerical staff has ever been assigned responsibility to review consults
and determine clinical priorities. With regard to incident (3), the
Chief of Surgical Service acknowledged that he neglected to inform
his secretary to schedule a meeting with complainant. He conceded
that this was an oversight on his part. With respect to incident
(4), complainant's supervisor stated that complainant's peers had told
her that complainant had not generated assignment sheets and that she
sent complainant an e-mail with regard to this matter. She stated that
complainant had raised a similar concern in the past and that the issue
was addressed in a similar fashion. As for incident (5), complainant's
supervisor stated that she communicates with all of her staff verbally
and via e-mail. With respect to incident (6), complainant's supervisor
stated that a member of the clerical staff brought to her attention that
she had received some patient cancellations via e-mail from telephone
communication staff. Complainant's supervisor stated that the e-mail
of the cancellations to the clerk was inappropriate and that it was
immediately discontinued. We find that the agency articulated legitimate,
nondiscriminatory reasons for its actions.
A review of the record reveals that complainant has not established that
the agency's stated reasons were pretext intended to mask discriminatory
intent. Upon review of the contentions set forth by both complainant
and the agency, we find that complainant has not shown that the alleged
actions were of such severity or pervasiveness as to create a hostile
work environment. Moreover, we find that complainant has not shown that
any of the alleged actions were motivated by discriminatory intent rather
than the reasons proffered by the agency.
After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the agency's
final action finding no discrimination, because a preponderance of the
record evidence does not establish that complainant was subjected to a
hostile work environment or disparate treatment based on her sex, race,
or reprisal.
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 12, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1An additional claim raised by complainant was that during the second or
third week of July 2003, she was instructed to work in the Eye Clinic and
management failed to advise her when she would be returning to her work
area. The agency dismissed this claim on the grounds that complainant
failed to initiate contact with an EEO counselor in a timely manner.
We note that complainant did not challenge this dismissal with the
Administrative Judge and that she has not raised this issue on appeal.
Therefore, we shall not address this issue in this decision.