0120113958
02-20-2013
Kim E. Lanham, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kim E. Lanham,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113958
Hearing No. 520-2011-00145X
Agency No. 200H-0689-2010103759
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 29, 2011 final order concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Lead Transportation Assistant at the Agency's Business Office, VA Medical Center in West Haven, Connecticut.
On June 25, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On August 10, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American), sex (female), and in reprisal for prior EEO activity when1:
1. in February 2010, the Business Office Service Line Manager, also her third line supervisor, assigned her additional duties without a position description and told her she would have to perform them or she would be disciplined;
2. on two occasions in February 2010 and in the presence of her co-workers, her third line supervisor yelled at her that she was doing her work assignments wrong;
3. on February 17, 2010, the third line supervisor told her in an email response "[Complainant], the black language below is the CFR paragraph;"
4. on May 24, 2010, she learned that her supervisor accessed her medical records without her permission;
5. on June 11, 2010, the third line supervisor issued her a position description that did not adequately reflect her duties;
6. on June 17, 2010, the third line supervisor issued her new performance standards that he knew she could not meet;
7. on June 21, 2010 and during a training session, the third line supervisor yelled she was doing her work wrong;
8. on July 7, 2010, the third line supervisor instructed her former supervisor to take away her cell phone;
9. on August 5, 2010, she was moved from her office into a shared workplace;
10. on August 5, 2010, her supervisor issued her a proposed 5-day suspension dated July 28, 2010 in the presence of VA police officers.
On September 23, 2010, the Agency issued a partial dismissal. The Agency accepted for investigation claims 8 and 9. However, the Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency further dismissed claims 4 - 6 on the grounds that these matters were not raised in EEO counseling and they were not like or related to a matter raised in counseling, pursuant to 29 C.F.R. � 1614.107(a)(2).
The Agency dismissed claim 10 pursuant to 29 C.F.R. � 1614.107(a)(4). The Agency found that claim 10 is a collateral attack on the negotiated grievance process. Finally, the Agency dismissed claims 2, 3, and 7 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1), finding that Complainant was not aggrieved. Specifically, in addressing these claims, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not state a claim of discriminatory harassment.
At the conclusion of the investigation concerning claims 8 and 9, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On June 29, 2011, the AJ issued notice of her intent to issue a decision without a hearing, to which only the Agency responded. On July 29, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final order.
In her decision, the AJ found no discrimination concerning claims 8 and 9. Without analyzing the prima facie case, the Agency found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. Specifically, the AJ found that Complainant's telephone privileges were removed because she went significantly over the Agency's 500-minute allowed maximum, and she was moved into a shared workplace as part of larger office-wide rearrangement.
The AJ noted in her affidavit, Complainant acknowledged she went over the Agency's 500-minute allowed maximum. Specifically, Complainant stated "I did do some calling that I knew was inappropriate, you know, a little bit over."
Complainant's third line supervisor, stated that as a Lead Transportation Assistant, Complainant is responsible "for making sure that transportation is arranged for eligible patients, for paying mileage under the Beneficiary Travel Program and she's responsible for patient funds." The third line supervisor also stated that Complainant takes care of transportation issues at the Agency's West Haven and Newington offices, and is in charge of four travel clerks. The third line supervisor stated that Complainant was issued a cell phone so drivers could contact her if they had any transportation issues.
Further, the third line supervisor stated that based on Human Resources' recommendation, he instructed Complainant's former supervisor to take Complainant's cell phone away from her because "there's no reason for her to make international calls on a work cell phone."
Complainant's former supervisor stated that the Telecom Manager routinely reviews cell phone bills to search for excessive usage. The supervisor stated that the Telecom Manager shared her concerns about Complainant's excessive usage with him. Specifically, the supervisor stated while Complainant's tour of duty is 7:30 a.m. to 4:00 p.m., the Telecom Manager noted that Complainant's cell phone "being used . . . during the business day, and after hours, weekends and so on. She came to me about that wondering why." The supervisor stated that at the same time "the phone folks came to me and said, 'you know, this doesn't look right because there's so many minutes being used.'"
Further, the supervisor stated that Complainant's third line supervisor asked him to take away Complainant's cell phone because she exceeded the limited allotment and "using it too much besides work purposes."
With respect to Complainant's allegation that she was moved from her office into a shared workplace, the third line supervisor stated that Complainant's move was part of the office-wide rearrangement. The third line supervisor stated that the Space Committee had discussions as to where to move Agency employees because "space is at a premium at this facility."
Further, the third line supervisor stated that during the relevant time "the entire business office was getting moved around. I, myself, relocated to an entirely new building two weeks ago, along with another 40 of my staff. Previous to that, about a year ago we moved about 35 staff from up the hill to down the hill. There have been quite a number of moves going on due to other needs and [Complainant's] particular office was really needed for the privacy officer because the privacy officer had been slated to move down the hill with me, but that doesn't make any sense because it's not accessible for patients."
Complainant, on appeal, argued that she is subjected to ongoing harassment. For instance, Complainant stated that in August 5, 2010, she received a proposal for a suspension "that was based on HEARSAY. Also on August 5, 2010, I had the VA police called against me as escort for my supervisor to give me my suspension letter [emphasis in its original]." Complainant further argued that her supervisor, under the supervision of the third line supervisor, improperly accessed to her medical records.
Finally, Complainant argued that her third line supervisor's behavior "is harassment and discrimination, secondary to there have not been any disciplinary action toward any of my coworkers for any reason. I am being singled out on hearsay issues and unfounded accusations."
The instant appeal followed.
ANALYSIS AND FINDINGS
As a threshold matter, we note that Complainant, on appeal, challenged the Agency's September 23, 2010 partial dismissal concerning claims 1 - 7 and 10. We further note, however, that the record reflects that on page 8 of the partial dismissal, Complainant was placed on notice that if she disagreed with the dismissal of claims 1 - 7 and 10, she was required to notify the Agency within 7 calendar days of receipt of the partial dismissal. The record reflects that Complainant acknowledged receipt of the partial dismissal but did not file an objection to the dismissal of claims 1 - 7 and 10. Thereafter, the Agency commenced investigation of claims 8 and 9.
We also note that in her January 24, 2011 Acknowledgement and Order, the AJ instructed Complainant to inform her if she disagreed with the Agency's dismissal of claims 1 - 7 and 10. In her decision, the AJ stated that Complainant did not make such a submission. Therefore, we will only address claims 8 and 9 in the instant case.
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. 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). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
As an initial matter, we find that Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination concerning claims 8 and 9. The Commission determines that the Agency conducted a thorough investigation. Moreover, Complainant's appellate arguments encompass a variety of new matters that were not the subject of the investigation of the instant complaint.
The Commission also determines that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, sex, and prior protected activity. Although the AJ did not specifically address Complainant's harassment allegation, we find that the incidents of harassment identified by Complainant are not sufficiently pervasive or severe to create a hostile work environment. We discern no basis to disturb the AJ's decision without a hearing, finding no discrimination.
The Agency's final order implementing the AJ's decision finding no discrimination concerning claims 8 and 9 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
February 20, 2013
__________________
Date
1 For ease of reference, we have numbered Complainant's claims as claims 1 - 10.
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0120113958
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113958