0120093290
08-12-2011
Katina D. Muller, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Katina D. Muller,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093290
Hearing No. 470-2009-00026X
Agency No. 200J-0552-2008100880
DECISION
On August 4, 2009, Complainant filed an appeal from the Agency’s July
22, 2009, 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 deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission MODIFIES the Agency’s final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the EEOC
Administrative Judge’s conclusion that Complainant demonstrated that
she was discriminated against based on race with regard to the denial of
leave, but failed to demonstrate that she was subjected to discriminatory
harassment with respect to the remainder of her allegations.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Nursing Assistant at the Agency’s VA Medical Center (VAMC) in
Dayton, Ohio. On January 16, 2008, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of race
(African-American) and reprisal for prior protected EEO activity under
Title VII when:
1. From June 2005 through November 2007, she was subjected to the
following instances of harassment:1
a. On November 29, 2007, she was detailed to the Nutrition and Food
Services Department pending the outcome of an investigation of alleged
patient abuse;
b. In November 2007, her Second Level Supervisor (S2) informed her
that she (S2) heard Complainant was just like a coworker (C1), only the
black version;
c. On various dates in August and September of 2007 she was charged
Absent Without Leave (AWOL);
d. On August 27, 2007, she was issued a Reprimand;
e. In August 2007, S2 questioned her regarding her father’s health
care as a patient at the VAMC and informed her that she was conducting
a fact finding;
f. In August 2007, her Former Supervisor (FS1) informed her that S2
stated it was too bad that Complainant made it past her probationary
period because she (S2) would have fired her;
g. On January 22, 2007, she was issued an Admonishment;
h. In August 2006, she and C1 were detailed to other units pending an
investigation, however S2 allowed C1 to remain on their unit rather than
working on the unit she was detailed to, while Complainant had to work
on the unit she was detailed to;
i. In August 2006, she was issued a Proposed Admonishment;
j. On August 13, 2005, S2 informed her that she could not have time off
for her wedding and honeymoon;
k. In June 2005, S2 informed her that she could not attend school while
working at the VAMC; and
l. On July 7, 2008, she was issued a Proposed Removal.
2. On November 29, 2007, she was detailed to the Nutrition and Food
Services Department pending the outcome of an investigation of alleged
patient abuse.2
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 May 14, 2009,
and issued a decision on June 18, 2009.
In his decision, the AJ reviewed the alleged incidents both individually
and in the aggregate. First, the AJ found that the Agency had legitimate,
nondiscriminatory reasons for its actions in incidents (a), (d), (e),
(g)-(i), (k), and (l).
Regarding incidents (a) and (l), the AJ found the following facts: On
November 27, 2007, Complainant was called to assist a nurse (N1) with
a patient and engaged in a discussion. The patient later reported that
Complainant had entered the room angrily and was afraid to be left alone
with her. On November 28, 2007, Complainant’s First Level Supervisor
(S1) met with the patient and his roommate. The patient reported that
he did not feel safe and both the patient and the roommate described
Complainant as the aggressor. Based on her initial findings, and
after meeting with Complainant to discuss the allegations, S1 detailed
Complainant from the unit on November 28, 2007, and an Administrative
Board of Investigation (ABI) was convened. On January 28, 2008, the
ABI issued a report and recommended appropriate disciplinary action
for Complainant for patient abuse and fraudulent documentation.
On July 7, 2008, the Agency issued Complainant a Proposed Removal
based on the November 2007 incident. The AJ found that the Agency
acted reasonably based upon the information received from the patient.
Although Complainant argued that she was treated less favorably than
N1, the AJ noted that the patient did not make the same allegations
against N1. In addition, the AJ noted that, even if the patient and his
roommate may or may not have been telling the truth about the incident,
the Agency was obligated to act on that available information.
Regarding incident (d), the AJ found the following facts: Complainant
was issued a reprimand for an encounter with another employee (C2 –
African-American). The encounter occurred on March 26, 2007 and involved
a loud and argumentative conversation. C2 was issued a written counseling
on August 31, 2007. Based on the above, the AJ found that the Agency
had a legitimate reason for issuing the reprimand as Complainant had
engaged in a loud and disruptive argument around patients. In addition,
the AJ found that Complainant did not show pretext or that she was treated
differently than a similarly situated non-African-American employee.
Regarding incident (e),3 the AJ found the following facts: S2 initiated
a fact finding related to an allegation that Complainant had displayed
disruptive and aggressive behavior toward staff on the unit attending
Complainant’s father. S2 concluded that Complainant had displayed
disruptive behavior on the unit and had attempted to verbally intimidate
the staff. Based on the above, the AJ found that the Agency was entitled
to act upon the report by staff that Complainant was confrontational
regarding her father’s care. In addition, the AJ found that Complainant
did not show pretext.
Regarding incidents (g) and (i),4 the AJ found the following facts: In
November 2006, the Agency issued a Proposed Admonishment to Complainant
and C1 for the same conduct in the same incident. Subsequently, the
Agency issued both Complainant and C1 an Admonishment. Based on the
above, the AJ found that Complainant could not show that the Agency’s
actions were based upon her race or EEO activity because C1 also received
a Proposed Admonishment and Admonishment for the same incident.
Regarding incident (h), the AJ found the following facts: On August 22,
2006, both Complainant and C1 were detailed from their regular positions
to different units. The record indicates that C1 was permitted to work
on her regular unit for one or two shifts; however, S2 was not involved
in that decision and C1 was returned to her detailed unit immediately
afterward.5 Based on the above, the AJ found that Complainant and C1 were
not treated differently as both employees were detailed to other units.
In addition, the AJ found that the fact that C1 was permitted to work
a shift or two in her regular unit was not relevant as S2 was not the
supervisor who allowed this.
Regarding incident (k), the AJ found that Complainant had come forward
with insufficient facts to determine that S2’s actions were due to
Complainant’s race. In addition, the AJ found that there were no
facts demonstrating that Complainant had engaged in EEO activity prior
to this incident.
The AJ found that incidents (b), (c), (f), and (j) were “troublesome.”
Regarding incident (b), the AJ found that S2 made the statement, but that
it was not connected with any particular employment action. The AJ found
that the statement was an indicator of S2’s bias, but in and of itself,
it was only a stray remark that a manager should not make.
Regarding incident (c), the AJ found the following facts: S2 changed
Complainant’s leave status to AWOL after S1 had approved Complainant
for Leave Without Pay (LWOP). Complainant followed the appropriate
procedures and S2’s actions were inconsistent with Agency policy.
Based on the above, and noting that the Agency failed to provide an
explanation for its actions, the AJ concluded that S2 discriminated
against Complainant because of her race.6
Regarding incident (f), the AJ found that S2 made the statement, but that
it was not connected with any particular employment action and was not
made directly to Complainant. The AJ found that the statement was not
an indicator of bias on the part of S2. However, the AJ noted that,
like many things said by S2, the stray remark was one that a manager
would be wise not to make.
Regarding incident (j), the AJ found the following facts: Prior to
the wedding and soon after being employed, FS1 approved Complainant’s
request for advance leave. A week before the wedding, S2 told Complainant
that she could not have the leave and that she needed to report to work
at the time the wedding was scheduled. Complainant took the matter over
S2’s head and was granted a combination of Annual Leave and LWOP for
the wedding. At about the same time, Complainant observed that C1 was
given off days that she requested. S2 switched days off for C1 in order
to give her the requested time off work.
The AJ found that S2’s actions in incident (j) were based upon
Complainant’s race. In doing so, the AJ cited the following: (1)
in November 2007, S2 referred to Complainant as being just like C1,
only the Black version; (2) on occasion, S2 had been heard to make
statements that “those people do not know what birth control is;”
and (3) in 2006, when S2 learned that Complainant was pregnant, she told
Complainant that she did not know how Complainant did it, “you Black
girls don’t believe in birth control, do you?” The AJ found that
the statements indicated a bias against African-American employees, and
established S2’s motivation in denying leave to Complainant. Further,
the AJ noted Complainant’s testimony that C1, the Caucasian employee,
was treated more favorably than she was treated. The AJ found that the
evidence was sufficient to establish that the Agency discriminated against
Complainant on the basis of her race when changing Complainant’s leave
status in incident (j).
However, the AJ found that the incidents of racially motivated conduct
were not sufficiently severe or pervasive to constitute actionable
harassment. Finally, the AJ commented specifically about S2. The AJ
noted that S2 was often at the center of problems in the nursing
department and appeared to take the allegations against her very
personally. The AJ also noted that witnesses were often reluctant to
come forward for fear of retaliation by S2. The AJ stated, “It is
clear to this [AJ] that many of the problems that have been created for
[Complainant] and other employees have been the result of [S2]’s conduct
and biases. Although the Agency prevails in this case today, it should
give serious consideration to some of the findings made herein.”
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. In doing so, however, the Agency noted
that in Section III of the AJ’s decision, the section where the AJ
summarized his finding of no discrimination, he erroneously referenced
a complaint filed by another Agency employee.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that she established her hostile work
environment claim. Specifically, Complainant argued that she was
an African-American female, she was subjected to numerous incidents
of unwelcome conduct, and the AJ stated in his decision that S2 had
discriminated against her because of her race. In addition, Complainant
argued that evidence and the testimony of FS1 showed that C1, who was also
accused of patient abuse, was not moved from the floor or investigated.
Finally, Complainant noted that the AJ referenced a different complaint
on the last page of his decision and argued that the AJ intended to rule
in her favor based on his statement in the decision that S2 discriminated
against her because of race. 7
The Agency contended that it accepted and fully implemented the AJ’s
decision. The Agency stated that the AJ’s decision was thorough
and well analyzed and that the Complainant made no argument on appeal.
The Agency requested that the final order be affirmed.
ANALYSIS AND FINDINGS
Standard of Review
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. Nat’l Labor Relations Bd.,
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 EEO MD-110, Ch. 9, § VI.B.
Disparate Treatment
At the outset, we agree with the AJ and the Agency, i.e., the Agency
adopted the AJ’s decision, that S2 discriminated against Complainant
on the basis of race when she told Complainant that she could not take
previously scheduled leave and that she had to report to work during
the time her wedding and honeymoon were scheduled which resulted in
Complainant, in part, having to take LWOP (incident (j)). Although the
AJ found that Complainant was subjected to discrimination based on
disparate treatment, we find that he erred in not providing a remedy.
Accordingly, the Agency will comply with the ORDER set forth below.
Harassment
To establish a claim of harassment a complainant must show that:
(1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on their statutorily protected class; (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;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “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). 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 at 6 (Mar. 8, 1994).
Upon review, we find that the substantial evidence of record supports
the AJ’s finding that Complainant was not subjected to a hostile work
environment on the bases of race or reprisal. Complainant contended in
her appeal that she was subjected to numerous incidents of unwelcomed
conduct; however the AJ determined that nine of the twelve alleged
incidents were not based on race, and eight of them were actions
consistent with Agency policy. In these eight incidents, the record
reflects that the Agency articulated legitimate, non-discriminatory
reasons for its actions. Complainant’s main argument that the
reasons were pretext is that she was treated less favorably than C1,
a Caucasian coworker. In the four incidents in which C1 was involved,
the AJ determined and the record reflects that Complainant and C1 were
treated equally. Complainant has therefore failed to show that she
was treated less favorably than other similarly situated employees in
these incidents.
Complainant contended that evidence and the testimony of FS1 showed that
C1, who was also accused of patient abuse, was not moved from the floor
or investigated. However, the record reflects that FS1 was referring
to an allegation of employee abuse. ROI, FS1’s Deposition, at 15.
According to FS1, a resident had complained that C1 had verbally abused
the resident. Id. FS1 went on to state that she was unsure if any
investigation had been conducted or any action had been taken, but she
had requested that C1 be removed from the unit and she was not. Id.
This does not show that C1 was treated more favorably than Complainant
with respect to an allegation of patient abuse because C1’s situation
involved an allegation of employee abuse. In addition, we note that
Complainant also was not moved from the floor when she was accused of
employee abuse connected with incident (d). In this instance there is
no evidence the Complainant was treated differently.
Complainant also contended that the AJ stated in his decision that S2
had discriminated against her based on her race. The AJ did state that
S2 had discriminated against Complainant based on her race, but only
in connection to incidents (b), (c), and (j). However, in order to
establish a claim of unlawful harassment, Complaint must also show that
these three incidents were severe or pervasive enough to have altered the
conditions of her employment and create an abusive working environment,
i.e., element (4) of a harassment claim. Incident (b) was a racially
motivated comment, but it was an isolated incident. There is no dispute
that any adverse action resulted from the comment. Incidents (c) and
(j) were also isolated in time as these three incidents occurred over
the course of two years. As noted by the Supreme Court in Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1988), “simple teasing,
offhand comments, and isolated incidents (unless extremely serious)
will not result in discriminatory changes in the ‘terms and conditions
of employment.’” While any action that carries a blatant racial
motivation should be considered serious, we find that none of these
actions either individually or in the aggregate were severe enough to
change a term or condition of Complainant’s employment.8
Complainant lastly argued that the AJ referenced the wrong case in
his decision. Complainant stated that, based on the AJ’s facts,
she believed he intended to rule in her favor. This is not the
case as the final page of the AJ’s analysis makes it clear that he
intended to rule in favor of the Agency. The AJ stated that the “the
incidents of racially motivated conduct are not sufficiently severe or
pervasive to constitute actionable harassment.” AJ Decision at 16.
He also stated that “although the Agency prevails today, it should
give serious consideration to some of the findings made herein.” Id.
These statements show that the AJ clearly decided for the Agency, though
he did have reservations about S2’s conduct.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we MODIFY the
Agency’s final order. The Agency will comply with the ORDER below.
ORDER
Unless otherwise indicated, the Agency is ordered to take the following
remedial action within sixty (60) days of the date this decision becomes
final.
1. The Agency shall conduct a supplemental investigation on compensatory
damages, including providing Complainant an opportunity to submit evidence
of pecuniary and non-pecuniary damages. For guidance on what evidence is
necessary to prove pecuniary and non-pecuniary damages, the parties are
directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages
Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992)
(available at eeoc.gov.) The Agency shall complete the investigation and
issue a final decision appealable to the EEOC determining the appropriate
amount of damages within 150 calendar days after this decision becomes
final.
2. The Agency shall determine the appropriate amount of back pay, with
interest, and other benefits, if any, due to Complainant, pursuant to
29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. Complainant shall cooperate in the
Agency’s efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the Agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the Agency shall issue checks to Complainant for the
undisputed amount within sixty (60) calendar days of the date the
Agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition(s) for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
“Implementation of the Commission’s Decision.”
3. The Agency shall provide sixteen (16) hours of EEO training to S2
regarding her responsibilities as a manager in preventing discrimination
in the workplace. The Agency shall also provide training to each of its
employees at the VA Medical Center in Dayton, Ohio on their right to be
free from retaliation because they oppose practices made unlawful by,
or participate in proceedings pursuant to, Federal equal employment
opportunity law.
4. The Agency shall consider taking appropriate disciplinary action
against S2. The Commission does not consider training to be disciplinary
action. The Agency shall report its decision to the Compliance Officer.
If the Agency decides to take disciplinary action, it shall identify the
action taken. If the Agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline.
If any of the responsible management officials have left the Agency’s
employ, the Agency shall furnish documentation of their departure date(s).
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled “Implementation of the Commission's
Decision.” The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its VA Medical Center in Dayton,
Ohio copies of the attached notice. Copies of the notice, after being
signed by the Agency's duly authorized representative, shall be posted
by the Agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The Agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled “Implementation of
the Commission’s Decision,” within ten (10) calendar days of the
expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees
to the Agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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
____8/12/11______________
Date
1 In her formal complaint, Complainant listed incidents (c), (d), and (g)
as discrete claims. Prior to the investigation, the Agency dismissed
those incidents as separate claims because they were previously the
subject of a grievance, but noted that it would include them as part
of Complainant’s harassment claim. Subsequently, the AJ affirmed the
Agency’s partial dismissal.
2 We note that this claim involves incident (a).
3 The AJ found that this incident was a part of the Reprimand issued to
Complainant on August 27, 2007.
4 Complainant stated that the Proposed Admonishment was issued in
August 2006. However, the incident it was connected to suggests that
it was actually issued in November 2006.
5 Complainant was also permitted to return to her regular assignment on
November 13, 2006, but, as noted above, it was not for one or two shifts.
6 We again note that this incident was dismissed by the Agency because
Complainant had filed a prior grievance on the matter. We find that
the dismissal was properly upheld by the AJ.
7 We note that Complainant did not specifically address the issue of
disparate treatment
(claim 2) on appeal. The Commission therefore exercises its discretion to
review only her harassment claim, the issue specifically raised on appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Ch. 9, § IV.A. (Nov. 9, 1999).
8 Although we find, for the above reasons, that incident (j) would
not constitute harassment, we do find like the AJ and the Agency that
S2 engaged in adverse conduct that was racially motivated with regard
to Complainant. In addition, we are concern that there was evidence
that at least one witness was afraid of retaliation from S2 in that he
wanted assurances that the record would be sealed so that S2 would not
be aware of the witness’s statements. ROI, FS1’s Deposition, at 4-15.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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