01a52186
12-09-2005
Katherine J. Harris, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Katherine J. Harris v. Department of Veterans Affairs
01A52186
December 9, 2005
.
Katherine J. Harris,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52186
Agency No. 200M-0657-2004101734
DECISION
Complainant timely initiated an appeal from a final decision concerning
her complaint of unlawful 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. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following
reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Telemetry Technician at the agency's John Cochran Veterans Affairs
Medical Center facility in St. Louis, Missouri. Complainant sought
EEO counseling and subsequently filed a formal complaint on April 14,
2004, alleging that she was discriminated against on the bases of race
(African-American), sex (female), age (42), and reprisal for prior EEO
activity<1> when:
From January 12, through April 8, 2004, complainant's supervisor (S1):
Frequently accused complainant of leaving early and checked on her
whereabouts;
Questioned co-workers about complainant;
Charged and threatened complainant with absence without approved leave
(AWOL);
Disclosed complainant's private information to co-workers;
Delayed correcting complainant's time card;
Called complainant's physicians; and
Accused complainant of not turning in medical statements.
On February 20, 2004, S1 denied complainant's request to work the
night tour.
On January 23, 2004, complainant was informed that she was to continue
with the Medical Certification of Sick Leave.
Effective April 7, 2004, complainant was reprimanded for being AWOL,
providing a falsified doctor's statement and failure to follow S1's
instructions.
On May 18, 2004, S1 re-posted the schedule for complainant to work
every weekend.
On May 26, 2004, complainant was charged AWOL.
On June 7, 2004, S1 continued to check on complainant's whereabouts.
On June 10, 2004, S1 posted a schedule unfairly.
On June 23, 2004, S1 posted the work schedule from August 8 - 21, 2004,
in an unfair manner, by scheduling her to work six days straight by
working nights one week and days the next week.
From June 16 - 18, 2004, complainant requested sick leave and it
was denied.
On July 2, 2004, complainant received a Confirmation of Verbal
Counseling.
On July 16, 2004, complainant received a memorandum dated July 7, 2004,
�Continuation of medical certification requirement in support of leave
requests.�
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its decision dated December 20, 2004, the agency concluded that some of
the incidents that complainant described in her complaint as contributing
to her overall claim of harassment at the hands of S1, her immediate
supervisor, did not occur. Further, the agency found that taken together,
complainant had not described conduct so severe or pervasive as to rise
to the level of harassment sufficient to alter the terms and conditions
of complainant's work environment. Specifically, the agency found no
evidence to support complainant's allegations concerning harassment
as described in claim 1(d) (disclosure of private information); 1(e)
(delayed correcting complainant's time card); 1(g) (accused of not turning
in medical statements); (5) (scheduled to work every weekend); (8) (unfair
schedule posting); and (10) (June 16 - 18, 2004 denial of sick leave).
Moreover, the agency found that complainant failed to show any evidence
that any of the incidents occurred because of complainant's race, sex,
age, or in retaliation for complainant's prior protected activity.
With respect to complainant's other claims (discipline, medical
certification, work schedule, time, leave and attendance) that she was
treated differently than other employees not in her protected classes,
the agency found that complainant had established a prima facie case
of race and sex discrimination, but failed to show that the agency's
reasons for its actions were a pretext for discrimination. Rather, for
each incident complainant considered discriminatory, the agency official
responsible (S1) articulated non-discriminatory reasons for his actions.
Specifically, S1 stated that as a supervisor, he is expected to know
where his employees are, that no one on his staff has a permanent tour,
except a part-time employee, and that the schedule is arranged so that
staffing needs are met, which requires only one employee at night, with
two employees during the day. S1 also stated that the leave requirements
are applied to all employees and that he has issued discipline to other
employees as necessary to address absentee and leave abuse problems.
S1 further confirmed that he did contact complainant's physicians on
occasion where complainant's medical statement appeared to be falsified,
and upon investigation, his suspicions were confirmed.
Regarding complainant's claims based on age the agency found that
complainant did not identify any employees, not in her protected class,
who were treated any better than complainant was treated. Accordingly,
the agency found that complainant failed to present a prima facie case
of age discrimination.
On appeal, complainant claims that her time records are still incorrect
and that at least one other technician, besides the part-time technician,
does not rotate from tour to tour. Complainant further argues that she
always turns in her doctor's statements and that she is unfairly placed
on medical certification, despite this.
ANALYSIS
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 and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. 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 alleges 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 that: (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.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We find that complainant failed to present evidence that more likely
than not the agency's articulated reasons for its actions were a pretext
for discrimination. In reaching this conclusion, we note that the
evidence shows that a number of employees received notices, similar
to those received by complainant, regarding their use of sick leave
and time and attendance from S1. Further, we observe that the record
on appeal contains a letter from complainant's healthcare provider
denying the authenticity of a medical statement that S1 received from
complainant. More importantly, we concur with the agency that, assuming
that complainant's contentions on appeal are accurate, nothing in the
record supplies the necessary nexus between complainant's protected
classes (race, sex, or age) and any of S1's actions. Additionally, we
find no evidence to suggest that S1 altered or intensified any of his
actions (close supervision, requirements for medical documentation, AWOL
charges, scheduling habits) in reprisal for complainant's EEO activity.
Rather, it appears that critical attention to complainant's time, leave
and attendance commenced long before complainant sought relief through
the EEO process. Accordingly, we find that complainant has failed to
demonstrate any connection between the initiation of her EEO activity
in February 2004, and the incidents that occurred thereafter.
We AFFIRM the agency's final decision finding no discrimination.
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 9, 2005
__________________
Date 1Complainant amended her complaint on July 16,
2004, to add incidents that occurred after her EEO contact, and to add
reprisal as a basis for her complaint.