0120113619
01-31-2013
Joyce Ann Smiley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joyce Ann Smiley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113619
Hearing No. 420-2010-00158X
Agency No. 200I-0619-2009104893
DECISION
On July 8, 2011, Complainant timely filed an appeal from the Agency's June 7, 2011, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Manager at the Agency's Central Alabama Veterans Health Care System (CAVHCS) in Montgomery, Alabama.
On November 4, 2009, Complainant filed an EEO complaint, as amended, alleging:
A. That the Agency discriminated against her:
1. based on race (Black) when on or about September 9, 2009, she was assigned additional Patient Safety duties and the tracking of all related actions, even though she felt overwhelmed with her current duties; and
2. based on her race and reprisal (prior EEO activity under Title VII) when in the later part of February 2010 she was not able to confirm if the leave had been approved, even though she submitted the leave request well in advance.
B. She was subjected to hostile work environment harassment because of her race, as evidenced by the following:
3. on or about February 2008, her first line supervisor (Black) forced her to develop and implement her own performance plan, without the supervisor's assistance, even though she did not even have a written position description;
4. from January 2008 to December 2008, her first line supervisor continuously denied her leave request(s), and/or failed to act on them;
5. from June 12, 2008 to September 2009, after she was given a Performance Improvement Plan, she found herself having to schedule weekly meetings with her first line supervisor who would cancel many at the last minute;
6. on or about August 28, 2008, her first line supervisor informed her she was willing to mediate regarding her position description, but not about her performance standards or other matters;1
7. from November 2008 to present, she has had to work under a Performance Plan that is written in "absolute terms" with all standards written at the 100% level, with no hope of obtaining a higher rating;
8. from November 2008 to May 2009, she felt neglected as she tried unsuccessfully to meet with her second line supervisor (Black) in an effort to find a resolution to the condition she was subjected to by her first line supervisor; to her dismay most of the meetings scheduled were cancelled at the last minute by her second line supervisor; she was later advised by her to just wait and met the new Director who was coming on board, leaving all issues open and subjecting her to further harassment;
9. on or about September 2, 2009, her first line supervisor became very hostile towards her, when she informed the supervisor she had discussed her Performance Plan with the Medical Center Director, and they were going to work on a solution to her concerns;
10. on or about September 2, 2009, her first line supervisor verbally changed her work processes, and became very hostile towards her when she informed her of the challenges these changes presented to her;
11. on or about September 9, 2009, she was assigned additional Patient Safety duties, and the tracking of all related actions, even though she felt overwhelmed with her current duties;
12. on or about October 22, 2009, her first line superior informed her that she missed some action items in her Performance Plan, and reminded her that she was not allowed to miss any of them, causing her additional undue stress;
13. on or about October 22, 2009, her performance review with her first line supervisor was very unprofessional; documents were missing; and she was given a VA Form 0750 to sign, with no rating or level of achievement identified on the form, which she refused to sign;
14. on or about October 22, 2009, she was asked to sign, without further discussion, her 2010 Performance Plan, where the first page was completely blank, and included a document she had not seen before; hence her refusal to sign the page;
15. on or about October 22, 2009, her first line supervisor informed her that the action item written by the new Director would be added to her Performance Plan, but no other action item would be removed; even though the intention of the Director was to redefine poorly written action items;
16. on or about November 24, 2009, her first line supervisor refused to explain the local procedures regarding the Performance Plan, even though the "Fully Successful" and "Exceptional" rating are unrealistic and in conflict with each other;
17. on or about December 12, 2009, her first line supervisor became very hostile towards her, when Complainant refused to sign the Performance Plan, even though she was willing to acknowledge in writing that she received it; and
18. on or about December 12, 2009, her first line supervisor refused once again to discuss the Performance Plan any further with her.
C. Complainant was subjected to discriminatory harassment and a hostile work environment because of her race and reprisal when:
19. on or about April 21, 2010, her first line supervisor changed the process previously used to assign projects without her knowledge; as a result one assignment (HL-0401) was given to her and another employee for completion; since she was not aware of the change, it confused and distressed her, and created a lack of trust in her assignment of action items to others;
20. on or about April 21, 2010, a response to an Office of Inspector General (OIG) request was again processed in a different manner, with her first line supervisor completing it for another employee; the supervisor's response left information out and she had to gather it, this task could have been simplified had the supervisor given her a complete copy of her response; the supervisor's actions caused stress and unnecessary delays on her, and she inadvertently forwarded incorrect information to the Director;
21. on or about April 29, 2010, two other OIG requests (HL-0376 & HL-0401) were assigned by her first line supervisor to Complainant and another employee without clear directions for the timely and accurate completion of the work, which lead to fault being placed on her for not processing OIG complaints correctly; and
22. in the later part of February 2010, she found it necessary to cancel her leave request for March 3-5, 2010, because she was not able to confirm if the leave had been approved even though she had submitted the leave request well in advance.
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 requested a hearing. Over Complainant's objections, the AJ granted the Agency's Motion for Summary Judgment and issued a decision without a hearing. The AJ found that Complainant failed to timely initiate EEO counseling on discrete incidents 3, 4, 5, 7 and 8. The AJ found that Complainant failed to prove race and reprisal discrimination. The Agency adopted the Agency's decision.
ANALYSIS AND FINDINGS
After filing her appeal, Complainant filed a civil action (identified as Civil Action No. 2:11-cv-01072) in the United States District Court for the Middle District of Alabama on December 16, 2011.2 The record further discloses that with the exception of claims 2, 6, and 19 - 22 above, the claims in the civil action complaint are the same as those raised in the instant administrative complaint. The regulation found at 29 C.F.R. � 1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988). Accordingly, claims 1, 3-5, and 7-18 are dismissed.
Complainant's leave request in claims 2 and 22 was approved by her first line supervisor on February 25, 2010. Report of Investigation (ROI), at 243, 658. Complainant did not know it was approved because she did not check. Id.
On claim 2, the AJ found that Complainant did not prove a prima facie case of disparate race discrimination because she did not show she was treated less favorably than a similarly situated individual outside her protected group or that she suffered an adverse action. The AJ found that Complainant did not prove a prima facie case of reprisal discrimination on claim 2 because she was not subject to an adverse action or any action would deter a reasonable person from EEO activity. The AJ also found that Complainant did not show that the Agency's explanation regarding this matter was pretext to mask discrimination.
On claim 6, the AJ found that the first line supervisor explained that she did not engage in mediation because Complainant wanted to mediate matters which she just lost in a step three grievance decision. On appeal, Complainant argues that the grievance did not cover her position description. We note that the first line supervisor stated the language in the position description was still being reworked at this time. On claims 19-21, the AJ found that the first line supervisor explained that Complainant's duties remained the same, and she was not asked to work outside the scope of her duties.
The AJ found that the matters in claims 6, and 19-22 did not rise to the level of actionable harassment. On these claims the AJ also found Complainant did not make out a prima facie case of race and reprisal discrimination because she did not show she was disparately treated. The AJ added that the Complainant did not show that the Agency's explanations regarding these claims were pretext to mask discrimination.
In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999). 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). 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.
In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
The record was adequately developed for summary disposition. We agree with the AJ's conclusions finding no race discrimination and reprisal, as applicable, on claims 2, 6, and 19-22. Complainant did not make out a prima facie case of race and as applicable reprisal discrimination on the above claims because she did not suffer adverse actions and the matters would not reasonably deter EEO activity. Complainant's request for leave (claims 2, 22) was approved on February 25, 2010, and she was free to check on this at any time. On claim 6, the Agency was in no way legally obligated to mediate issues, and failure to do so does not give to an actionable claim of discrimination. Complainant has not shown she was harmed regarding claims 19-21. While she contends that she was blamed in connection with claim 21, her first line supervisor stated Complainant was not blamed and no action was taken against her. ROI, at 247. Complainant did not explain what she meant by blame, or how it was communicated.
CONCLUSION
Claims 1, 3-5, and 7-18 are DISMISSED because Complainant filed a civil action on the same matters. The Agency's final order adopting the AJ's findings of no discrimination on claims 2, 6, and 19-22 is AFFIRMED.
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
January 31, 2013
__________________
Date
1 This allegation was defined by the Agency as occurring on August 28, 2009. The record shows it occurred on or about August 28, 2008.
2 The Court's electronic docket shows that as of January 30, 2013, the civil action is still pending.
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0120113619
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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