01A02739
07-09-2002
Lilieth A. Clarke, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Lilieth A. Clarke v. Department of Veterans Affairs
01A02739
07-09-02
.
Lilieth A. Clarke,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02739
Agency No. 97-0560
Hearing No. 170-98-8198X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant claims
that the agency discriminated against her on the basis of reprisal<1>
for prior EEO activity when:
(1) she was denied an interim proficiency report for the period from
May 1, 1995 to September 5, 1995, while she was required to complete
interim proficiency reports for her own staff;
on August 22, 1996, she was told she would not receive an interim
proficiency report; and
she was not recommended for promotion to the position of Nurse IV.
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
The record shows that from May 1, 1994 to July 30, 1995, complainant
was assigned to the position of Associate Chief of Nursing Service for
Education, at the agency's Highland Drive, Veterans Affairs Medical Center
facility in Pittsburgh, Pennsylvania. During this period, complainant
was under the immediate supervision of Responsible Management Official
(RMO) 1. Complainant was subsequently reassigned from that position to
the position of Patient Health Education Coordinator, located in the
Social Work Service, under RMO 2. Complainant actually began work in
her new position on September 5, 1995. The reassignment, however, was
made effective July 30, 1995.<2> In May 1996, RMO 2 issued complainant
her annual proficiency report ostensibly covering the period from May
1995 to May 1996. Complainant asked RMO 1 and RMO 2 whether an interim
report from RMO 1 was necessary to cover that period from May 1995 until
her reassignment to her new position and supervisor. Both RMO 1 and
RMO 2 answered that no such interim report was required.
Dissatisfied with this response, complainant repeatedly sought opinions
from a personnel management specialist and from the agency Chief of
Human Resources (RMO 3). RMO 3 informed complainant that an interim
proficiency report was not required because no more than ninety days
had elapsed from May 1, 1995, the commencement date for the period
at issue, and July 30, 1995, the effective date of her reassignment
to her new position. At around the same time, complainant repeatedly
asked various management officials about opportunities for promotion
from a Level III to a Level IV Nurse. From complainant's testimony,
it appears she does not allege she was denied selection for any specific
position but rather that management generally conspired to �prohibit and
block opportunities for consideration for promotion from a Nurse III to
a Nurse IV.� Report of Investigation (ROI) Tab B1b, p.18.
Believing that she was a victim of discrimination, complainant sought
EEO counseling and, subsequently filed a formal complaint on November
26, 1996. On August 26, 1997, the agency notified complainant that
it was dismissing additional allegations of discrimination concerning:
hostile work environment from May 1, 1995 to the present; demotion of
position, title, and rank, from July 30, 1995 to the present; and impact
from reassignment from nursing service to social work from July 30, 1995
to present. The agency said it was dismissing these allegations because
they had previously been raised by complainant in an earlier complaint,
pending before the agency.<3> At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant did not establish a prima facie case of
reprisal discrimination when she did not receive an interim proficiency
report because, while agency officials were aware of complainant's EEO
activity, she suffered no deprivation with regard to a term, condition or
privilege of employment due to the agency's actions. The AJ concluded
that, according to agency regulations, complainant was entitled to an
interim proficiency report for the period from May 1 to September 5,
1995, but noted that the proficiency report issued in May 1996 covered
the period from May 1, 1995 to May 1, 1996. The AJ therefore found
that complainant was not disadvantaged by the absence of an interim
proficiency report for the period from May 1 to September 5, 1995.
The AJ further noted that complainant's contention that the absence of
an interim proficiency report adversely affected her ability to obtain
a promotion to Nurse IV was speculative, as the record did not show she
had an entitlement to promotion to a Nurse IV position.
The AJ further concluded that, assuming arguendo complainant established
a prima facie case, the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ found that management understood the
agency's regulations to not require an interim proficiency report for
the period in question. Regarding the promotion issue, the AJ did not
address whether or not complainant established a prima facie case, but
the AJ did find the agency articulated a legitimate, nondiscriminatory
reason for its action, namely that complainant's supervisor RMO 2
understood agency regulations to require that candidates for promotion
to Nurse IV positions have prior experience in �leadership positions
in complex hospitals, Levels I and II.� ROI Tab B3b, p. 10. At the
time, the facility was a Level IV hospital, subsequently raised to a
Level III. Id. Complainant thus did not have the required experience
to justify recommending her for a Nurse IV position. Id.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
retaliation. Finally, the AJ found that complainant did not establish a
claim of harassment when, on August 22, 1996, she was notified that she
would not receive an interim proficiency report. The AJ found that the
single incident was insufficient to create a hostile work environment,
and further, that whether viewing the action alone or in conjunction
with the agency's other actions, complainant had not shown that the
actions were based on her prior EEO activity, nor were they sufficiently
severe or pervasive as to alter the terms, conditions or privilege of
her employment.
The agency's final order implemented the AJ's decision. From this
decision, complainant appeals.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
After a careful review of the record, we find that the AJ correctly
found no material fact at issue in this case. However, we take this
opportunity to clarify the AJ's position. We note that the prima
facie inquiry may be dispensed with in this case since the agency has
articulated legitimate and nondiscriminatory reasons for its actions.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983). Regarding the interim proficiency report,
the agency has said that such a report was not necessary for the period
in question. Regarding complainant's failure to be promoted to Nurse IV,
the agency has submitted two arguments. The first argument, provided by
RMO 2, is that the facility was a Level IV hospital, subsequently raised
to a Level III, and that, as such, complainant's experience there did
not provide sufficient experience for promotion to a Nurse IV position,
which required prior experience in �leadership positions in complex
hospitals, Levels I and II.� ROI Tab B3b, p. 10. The agency has also
said that complainant's qualifications were not impressive enough to
justify promotion to a Nurse IV position. ROI, Agency Investigative
Summary, p. 8.
The burden thus returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
Regarding the agency's failure to issue an interim proficiency report,
the written agency policy states that interim proficiency reports will
be prepared when an employee receives a change in assignment and when
�more than 90 days have elapsed since the last Proficiency Report
was completed.� Complainant's Exhibit C 2. The evidence shows that
complainant's previous Proficiency Report covered the period from May
1, 1994 to May 1, 1995, Complainant's Exhibit C 9, while her change in
assignment occurred effective July 30, 1995, 90 days after the issuance
of her previous report. Since more than 90 days had not elapsed since
her last report, complainant was not issued her next Proficiency Report
until her regularly scheduled annual report sometime in early May 1996.
Complainant has not shown that the agency's reliance on its written
policy is a pretext for discrimination.
Regarding the failure to be promoted to a Nurse IV position, we note
that it is unclear from the record whether complainant was eligible
for such a promotion. The agency's own records show that at least two
other Nurse IIIs were promoted to Nurse IV from the facility. ROI,
Agency Investigative Summary, p. 8. In addition, a memorandum issued
to complainant in August 22, 1996, by the Chief of Human Resources,
ROI Tab B2a, states that recommendations for promotion to Nurse IV
are �typically, but not exclusively,� given when the candidate has had
experience working at Level I or Level II hospitals. The fact that the
facility was not a Level I or Level II hospital was thus not a complete
bar to complainant's promotion to a Nurse IV position. Complainant,
however, has not shown that she either had previous experience working
at a Level I or Level II hospital, or that she had the same experience
as the two Nurse IIIs who were promoted.
Complainant was issued two memoranda, the first on June 8, 1995,
Complainant's Exhibit C 13, and the second on August 14, 1995,
Complainant's Exhibit C 22. In addition, she submitted as part of her
package of evidence a copy of another management memorandum, dated June
13, 1995. Complainant's Exhibit C 15. The three memoranda indicated
that complainant was denied promotion to Nurse IV because �there is not
evidence that she is meeting the qualification standards of the Nurse
IV grade.� Id. The agency has also stated that the two employees
who received promotions to Nurse IV did so because their performance
evaluations were superior to complainant's. ROI, Agency Investigative
Summary, p. 8. The agency contends that one of them received an
overall rating of Highly Satisfactory, the other, an overall rating of
Outstanding, while complainant had an overall rating of Satisfactory.
Id. Despite being aware of the agency's reasons for her failure to be
promoted, complainant has presented no evidence that she did meet the
qualification standards of the position, or that her overall rating was
Highly Satisfactory or Outstanding during the period. Accordingly, we
find that complainant has not shown, by a preponderance of the evidence,
that the agency's articulated reason is a pretext for discrimination.
Regarding complainant's claim of harassment when she was notified
she would not receive an interim proficiency report, the Commission
notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the
Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986), that harassment is actionable if it is sufficiently
severe or pervasive that it results in an alteration of the conditions
of the complainant's employment. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.
To establish a claim of harassment a complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected
to unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering, inter
alia, the nature and frequency of offensive encounters and the span of
time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);
EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050,
No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request
No. 05970077 (March 13, 1997). However, as noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the 'terms and
conditions of employment." The Court noted that such conduct �must be
both objectively and subjectively offensive, [such] that a reasonable
person would find [the work environment to be]
hostile or abusive, and . . . that the victim in fact did perceive to be
so.� Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Inasmuch as we find that the agency articulated a legitimate,
nondiscriminatory reason for not issuing an interim proficiency report,
we find that management's notification to her that she would not receive
such a report does not constitute harassment. We therefore find that
complainant has not shown that management's actions created such an
objectively offensive environment as to unreasonably interfere with her
work performance and/or create an intimidating, hostile, or offensive
work environment. See McCleod, EEOC Appeal No. 01963810.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's protected class. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the FAD.
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
_____07-09-02_____________
Date
1While complainant marked only the box next to �reprisal� on her
Formal Complaint form, she raised the issue of discrimination based
on race and/or color when she requested, as part of her relief, to be
afforded the same opportunities for advancement as her White colleagues.
We note, however, that complainant has not objected to the agency's
August 26, 1997 Notice of Accepted Issues that mentioned only reprisal
as a basis for discrimination. Accordingly we shall not address the
issue of discrimination based on race and/or color.
2It is unclear from the record what work complainant actually performed
between July 30 and September 5, 1995.
3Complainant has not addressed the dismissed issues on appeal.