0120063979
11-28-2007
Joyce Hill, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Joyce Hill,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120063979
Hearing No. 420-2006-00020X
Agency No. 200L-0586-2005101114
DECISION
On June 23, 2006, complainant filed an appeal from the agency's May 23,
2006, 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
employed at the agency's G.V. Sonny Montgomery VA Medical Center in
Jackson, Mississippi. The record reveals that an EEOC Administrative
Judge (AJ) concluded, in pertinent part, that the agency retaliated
against complainant when, on January 9, 2003, it failed to select her
for the position of Supervisory Registered Respiratory Therapist.
Joyce Hill v. Department of Veterans Affairs, EEOC Hearing Number
200L-0586-2003101391 (August 2004). A final agency order fully adopted
the AJ's findings, including the order to "place the complainant in
the supervisory registered respiratory therapist position or a position
comparable agreed to by the parties within 60 days of the final agency
decision." The agency subsequently placed complainant into the position,
and in a memorandum dated December 8, 2004, the Chief of the Respiratory
Care Service notified complainant that she would be assigned to work
the day/night rotating shift effective December 15, 2004.
In a letter dated December 13, 2004, complainant's attorney notified
the Chief that complainant did "not find the day/night rotating shift
assignment acceptable." In response, the Chief offered complainant the
option of working the evening shift, a day/evening rotating shift, or
day/night rotating shift. After complainant failed to select amongst
those options, the Chief assigned complainant to a rotating day/night
shift, which meant that complainant worked mostly days but worked nights
approximately three or four times per month when supervisory coverage
was needed on the night shift. In a formal EEO complaint dated March 6,
2005, complainant alleged that the assignment was retaliatory.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an AJ. Complainant timely requested a hearing, and the
AJ held a hearing on April 12, 2006. On May 8, 2006, the AJ issued a
decision in which he found that complainant was not subjected to reprisal.
Specifically, the AJ found that complainant failed to establish that she
was aggrieved under EEO regulations by the agency's actions or that the
agency's articulated reasons for its actions were pretext for unlawful
discrimination. The agency subsequently issued a final order adopting
the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred in finding no reprisal.
Specifically, complainant argues that she was aggrieved by the agency's
actions because she was offered a shift that no one else worked, and
the agency failed to specify why she was assigned to work the day/night
rotating shift. Complainant further maintains that the supervisor gave
inconsistent answers in investigatory affidavits regarding how many
shifts there were within his department.
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, � VI.B. (November 9, 1999).
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). 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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
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). Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993). Although the burden of production, in other words,
"going forward," may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on complainant. Burdine, 450
U.S. at 256.
Upon review, we first find that the AJ erred when he found that
complainant failed to establish a prima facie case of reprisal.
The record reveals that complainant previously engaged in EEO activity
of which relevant agency managers were aware. Regarding the third
prong of a prima facie case of reprisal, the Commission's policy on
retaliation prohibits any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter complainant or others from
engaging in a protected activity. EEOC Compliance Manual Section 8,
"Retaliation" No. 915.003 at p 8-13 (May 20, 1998). See also Whitmire,
v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,
2000). In December 2004, the Chief assigned complainant to the rotating
day/night shift, a shift in which complainant was sometimes required to
work from approximately 7:30 a.m. until 4:00 p.m. and from midnight until
8:00 a.m. Unlike the permanent day or permanent night shifts that some
supervisors worked, the rotating day/night shift to which complainant
was assigned involved working more than one shift and working during the
overnight hours. Because of the disadvantages inherent in working the
rotational day/night shift, we find that assigning complainant to the
rotating day/night shift is conduct that is reasonably likely to deter
protected EEO activity and therefore find that complainant was subjected
to adverse treatment.1 Finally, with regard to the fourth prong, we find
that a nexus exists between complainant's previous EEO activity with the
Chief in August 2004 and her assignment to the rotational day/night shift
in December 2004. Consequently, we find that complainant established
a prima facie case of reprisal.
The Commission further finds that the agency provided legitimate,
non-discriminatory reasons for its actions. In hearing testimony, the
Chief testified that complainant was assigned to the rotational day/night
shift because the day/night shift needed supervisory coverage when the
night shift supervisor was on leave and because complainant originally
applied for a supervisory position that featured a rotational day/night
shift. The Chief further stated that after complainant objected to her
assignment to the rotational day/night shift, he offered her the option
of working a permanent evening shift, a rotating day/evening shift,
or the rotational day/night shift, but complainant failed to respond.
Complainant contends that the Chief contradicted himself regarding
the number and types of shifts that were available and the definition
of "rotation." However, upon review of the hearing testimony, we
conclude that the Chief's answers on these matters reflect good faith
misunderstandings between complainant's attorney and the Chief which
were clarified by the Chief through follow up questioning, rather than
an attempt to mask a retaliatory motive. We conclude that complainant
has not provided any persuasive evidence that the agency's articulated
reasons are pretextual. Accordingly, we find there is substantial
evidence to support the AJ's conclusion that complainant was not subjected
to reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission
AFFIRMS the AJ's finding of no reprisal for the reasons set forth in
this decision.
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
_November 28, 2007_________________
Date
1 We further note that in Joyce Hill v. Department of Veterans Affairs,
EEOC Appeal No. 0120053674 (September 12, 2005), the Commission found
that the instant matter stated a claim under EEO regulations.
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0120063979
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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