0120110007
03-17-2011
Lisa M. Horace, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lisa M. Horace,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110007
Hearing No. 420-2009-00036X
Agency No. 200L05202008102342
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's August 23, 2010 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Dental Assistant at the Agency's Gulf Coast Veterans Health Care System
facility in Biloxi, Mississippi. The record reflects that Complainant
was hired, subject to a one-year probationary period beginning, February
19, 2008. The record further reflects that of the individuals who applied
for the position of Dental Assistant that was awarded to Complainant,
one was Asian, two were White and two were Black.
On April 24, 2008, Complainant filed a formal complaint alleging that
the Agency subjected her to hostile workplace discrimination on the
bases of race (African-American) and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:
1) On February 25, 2008, she was consistently threatened by one of the
dentists she worked for that if she didn't have all computer information
correct by the time the Joint Commission for Accreditation of Healthcare
Organizations (JCAHO) arrived, she would be without a job.
2) On March 4, 2008, one of the dentists she worked for stated to her that
had he known she lived in Mobile, Alabama, he wouldn't have hired her.
He later yelled at her stating that he did not need the instruments she
put out for him, yet used them.
3) On March 14, 2008, she was docked for taking a one hour lunch break
although other staff members regularly take one hour for lunch.
4) On March 20, 2008, one of the dentists she worked for stated to her
that she should not be there, did not have the skills to work in the
Dental Clinic, and felt she lied on her resume.
5) On March 21 and 27, 2008, a staff dentist refused to work with
her.
6) Complainant also alleged that, because she filed a complaint of hostile
workplace harassment regarding the above, her employment was terminated
on June 20, 2008.
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 EEOC Administrative Judge (AJ). Complainant requested
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On July 29, 2010, the AJ issued a summary decision finding no
discrimination. In reaching this decision, the AJ determined that
even if Complainant could establish a prima facie case, the Agency
had articulated legitimate, nondiscriminatory reasons for its actions,
including Complainant's termination.
According to the AJ, the assertion by Complainant that on February 25,
2008, she was consistently threatened by one of the dentists, by being
told that if she didn't have all computer information correct by the
time the Joint Commission for Accreditation of Healthcare Organizations
(JCAHO) arrived, she would be without a job, is not supported by the
available evidence. The evidence shows that the dentist involved did
tell Complainant that he would, in substance, be quizzing her on a regular
basis to help her answer questions so that she would not be flustered when
JCAHO came. Similarly, the AJ found that the assertion by Complainant
that on March 4, 2008, one of the dentists she worked for stated to her
that had he known she lived in Mobile, Alabama, he wouldn't have hired
her, is not supported by the evidence. Complainant lived in Mobile, at
the time she applied for the instant job. The dentist who allegedly made
the comments attributed to him by Complainant was on her selection panel.
Regarding the assertion that a dentist yelled at Complainant, on March 4,
2008, stating that he did not need the instruments she put out for him,
yet used them, was also found not supported by the available evidence.
The dentist involved acknowledged raising his voice, in his reaction to
what Complainant had done, because he was irritated with her. The AJ
also found that the assertion by Complainant that on March 14, 2008,
she was docked for taking a one hour lunch break although other staff
members regularly take one hour for lunch, is not supported by the
evidence. Complainant admitted that she was not docked. According to
the AJ regarding the assertion that, on March 20, 2008, one of the
dentists Complainant worked for stated to her that she should not
be there, did not have the skills to work in the Dental Clinic, and
felt she lied on her resume has no connection to Complainant's race.
The dentist involved acknowledged that he told Complainant that she did
not have the skills to work there at the Clinic. The dentist stated that
Complainant lacked basic knowledge of standard dental instruments, and
was ineffective in assisting him during patient surgery. With respect
to Complainant's claim that a staff dentist refused to work with her,
the AJ found that the dentist involved stated that he did elect to not
work with Complainant because he found her to be disrespectful.
Finally, the AJ found that Complainant was ultimately terminated during
her probationary period because she was not qualified for the Dental
Assistant position and she was "poisoning" the work atmosphere with
her poor attitude. Further, the AJ found no evidence of any other
probationary employee being treated more favorably under the same or
similar circumstances.
In conclusion, the AJ found that the events of which Complainant
complains, either individually or collectively fail to rise to the level
of unlawful harassment prohibited by Title VII. Most importantly, there
is no evidence that any of the actions or decisions of agency management
were motivated by unlawful reasons. Complainant failed to establish that
any of management's reasons for its actions were pretextual or unworthy
of belief. Complainant failed to establish discrimination under either
the theory of disparate treatment or unlawful harassment.
On appeal, Complainant asserts, inter alia, that the AJ improperly
entered summary judgment in this matter. She further asserts that the
AJ did not adequately address her claims of harassment.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) she belongs to 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 her 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. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on her statutorily protected
classes, management continuously subjected her to a hostile work
environment. However, we find that Complainant has not shown that she
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving her protected classes, or the harassment complained of
was based on her statutorily protected classes. Further, Complainant
has not shown that the purported harassment had the purpose or effect
of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. While Complainant
has cited various incidents where agency management took actions that
were either adverse or disruptive to her, we find that Complainant fails
to show that these incidents were as a result of unlawful discrimination.
To the extent complainant is alleging disparate treatment with respect
to her termination, she has not shown that the agency's reasons for
terminating her were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
March 17, 2011
__________________
Date
2
0120110007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120110007