0120120926
04-24-2012
Janet E. Boone, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Janet E. Boone,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120926
Hearing No. 430-2010-00372X
Agency No. 200I-0544-2010100102
DECISION
On December 7, 2011, Complainant filed an appeal from the Agency's November 8, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Agency's Emergency Department (ER) of the William Jennings Bryan Dorn Healthcare System in Columbia, South Carolina.
On January 15, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (infiltrating ductal carcinoma breast cancer and allergy to Virex) and age (49) when:
1. On or about October 1, 2009, she received a proficiency report with an overall rating of unsatisfactory.
2. In October 2009, her verbal request to be reassigned out of the ER was denied.
3. As of December 14, 2009, Complainant's requests to be reassigned to work triage were denied.
4. Complainant was subjected to a hostile work environment. In support of her claim of harassment, Complainant asserted that the following events occurred:
a. On May 8, 2009, a co-worker (Co-Worker) attempted to "physically assault" Complainant by moving toward her, backing Complainant against a wall, and yelling at her from approximately "6 inches in front of (her) face."
b. On May 8, 2009, despite knowing Complainant is allergic to the chemical Virex, the Co-Worker stated, "You are not allergic to Virex and I will use Virex anywhere I want to when and if I feel like it, including in your rooms."
c. On May 8, 2009, after the complainant reported the Co-Worker's actions, her supervisor (Supervisor) did not respond.
d. On October 1, 2009, the Supervisor told Complainant that she was not a good nurse, does not take care of her patients, and would be rated unsatisfactory on her proficiency report
e. On or about October 1, 2009, Complainant received a proficiency report with an overall rating of unsatisfactory.
f. In October 2009, Complainant's verbal request to be reassigned out of the Emergency Room was denied.
g. As of December 14, 2009, Complainant's requests to be reassigned to work triage were denied.
h. On December 14, 2009, Management reported Complainant to the Columbia/Richmond Police Department for calling the facility and threatening to hurt herself.
5. By letter dated December 14, 2009, Complainant was notified of her Termination during her Probationary Period.
Complainant also alleged that she was subjected to discrimination in reprisal for the instant complaint when:
6. By letter dated December 14, 2009, Complainant was notified of her Termination during Probationary Period.
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 August 30, 2011, and issued a decision on September 28, 2011. In his decision, the AJ found that Complainant failed to establish her claims of discrimination.
The AJ first addressed Complainant's claim of disparate treatment based on age and disability. For purposes of analysis, the AJ found that Complainant met her prima facie case of age and disability-based discrimination. The AJ determined that the Agency provided legitimate, nondiscriminatory reasons for its actions. The Supervisor and the Second Line Supervisor testified that they did not assign Complainant triage work because she had not received the Agency's triage training. Furthermore, the Supervisors indicated that Complainant had performance problems. The AJ found the Supervisors' testimony to be credible and that Complainant did not show that the Agency's reason was pretext for discrimination based on age and/or disability.
Complainant asserted that she made requests to transfer out of the ER. The Supervisor and Second Line Supervisor testified that Complainant failed to make any specific request for a transfer. Even if Complainant had made such a request, they indicated that it was not within their authority to grant or deny a transfer to a different department. Instead, the Supervisors testified that Complainant could have applied through Human Resources for a transfer. The AJ found that Complainant did not show that the Supervisors subjected her to disparate treatment based on her age and/or disability.
Finally, as to Complainant's performance and termination, the AJ found that the Supervisors requested that Complainant's performance be reviewed by the Summary Review Board (SRB) for they found her performance to be unsatisfactory. The Supervisor provided the SRB with a proficiency report providing a report of Complainant's performance and areas of concern. The SRB determined that, despite Complainant's education and past experience, Complainant's "conduct as a staff nurse does not demonstrate that she meets the criteria of Practice, Ethics, Performance and Collaboration." As such, the SRB did not recommend retaining Complainant on staff. The AJ found that Complainant was clearly highly educated and experienced, however, she and management had contrasting ideas about procedures and the operation of the ER. As such, the AJ found that the Agency provided legitimate, nondiscriminatory reasons for Complainant's performance appraisal and subsequent removal. The AJ concluded that Complainant failed to show that the events constituted discrimination based on her age, disability, and/or EEO activity.
The AJ noted that Complainant requested that the Agency cease using Virex, a cleaning solution, in the ER as an accommodation for her allergy to the product. The AJ noted that Complainant's purported request for a reasonable accommodation came in the form of an email requesting that the Agency cease suing Virex for it was a danger to the patients and could cause additional respiratory risks. Complainant noted that she experienced some respiratory distress due to exposure to the chemical. However, the AJ found that Complainant's request did not constitute a request for a reasonable accommodation based on Complainant's medical needs. Further, the AJ determined that the Supervisors determined an alternative product that could be used instead of Virex. Therefore, they informed the janitorial staff not to use Virex. In addition, on May 15, 2009, the Supervisor emailed her staff to avoid using Virex. Therefore, the AJ determined that Complainant failed to demonstrate that the Agency denied her request for a reasonable accommodation.
As to Complainant's claim of harassment, the AJ determined that Complainant failed to show that she was subjected to harassment based on her age and/or disability. As to the interactions with the Co-Worker, the AJ noted that both Complainant and the Co-Worker had very strong personalities which contributed to the problems between the two of them. The Co-Worker took issue with Complainant's efforts to change the way things were done in the ER. Further, to the extent Complainant argued that the Co-Worker threatened her with Virex, the AJ noted that Complainant's testimony was not particularly credible and noted that it took Complainant over two weeks to report this incident to management. Finally, the AJ held that Complainant did not show that any of the alleged actions occurred because of her age and/or disability.
Complainant also claimed that the Supervisor and Second Line Supervisor created a hostile work environment. The AJ noted that witnesses testified that the overall work environment of the ER was generally tense, hostile and unpleasant. The witnesses also noted that the Supervisor was difficult, critical and a micro-manager. The AJ found that Complainant failed to show that the alleged events constituted harassment based on her age and/or disability.
Finally, Complainant indicated that the Agency called the Columbia Police Department. Management received reports that Complainant had called the facility several times and indicated that she might hurt herself. This information was provided to the Police Department. The Police tried to contact Complainant via phone. However, when the Police Department was unsuccessful in contacting Complainant, an officer was dispatched to speak to Complainant. The AJ found that Complainant had not shown that the Agency's action constituted unlawful harassment.
Accordingly, the AJ concluded that Complainant failed to establish her claims of discrimination and/or harassment based on her age, disability, and/or reprisal. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed without comment. The Agency requested that the Commission affirm
ANALYSIS AND FINDINGS
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. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not 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.
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 110, Chapter 9, at � VI.B. (November 9, 1999).
Claims 1, 2, 3, 5, and 6
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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 Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). The AJ properly found that the Agency provided legitimate, nondiscriminatory reasons for denying triage assignments, failing to reassign Complainant out of the ER, providing her proficiency report with an overall rating of unsatisfactory and terminating Complainant during her probationary period. The record then showed that the AJ correctly held that Complainant failed to show that the Agency's reasons were pretext for discrimination based on her age, disability and/or EEO activity.
Denial of Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. As noted above, the Commission assumes Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
The AJ properly held that once Complainant made Management aware of her allergy to Virex, the Supervisors consulted with the Agency to find an alternative. That alternative was communicated to the janitorial department. Further, the Supervisor emailed the staff to let them know that they needed to cease using Virex due to chemical sensitivity. Therefore, the AJ correctly held that Complainant failed to show that the Agency denied her request for a reasonable accommodation.
Hostile Work Environment
It is well-settled that harassment based on an individual's age, disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) she is a qualified individual with a disability covered under the Rehabilitation Act, over the age of 40, and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her disability, age and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). 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 (March 8, 1994).
We note that only one incident appeared to be connected to Complainant's disability. The AJ, based on the evidence collected and the testimony of the witnesses, did not find Complainant credible regarding her claim that the Co-Worker threatened to use Virex in the workplace. The Commission finds no reason to challenge the AJ's credibility determination. As to the other events which Complainant alleged constituted harassment, the AJ correctly found that Complainant failed to show that the alleged events occurred because of her disability, age and/or protected activity.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the final agency decision because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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 decision implementing the AJ's findings and conclusion.
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
April 24, 2012
__________________
Date
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0120120926
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120926