0120090844
04-12-2010
Nancy J. Watkins, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Nancy J. Watkins,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090844
Hearing No. 510-2007-00339X
Agency No. 200I-0573-2006103575
DECISION
On December 19, 2008, complainant filed an appeal from the agency's November 18, 2008 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant worked as a Staff Nurse at an agency Outpatient Clinic in Lecanto, Florida. Between April 2003 and January 2005, complainant attempted suicide three times and was hospitalized at least twice for significant lengths of time. Complainant registered for the "Intervention Project for Nurses (IPN)," an organization which was part of the State's Impaired Practitioner Program. This program provided her with counseling, therapy, and drug testing. This program apparently also exerted some control over what duties complainant could perform at work. As an example, complainant was not permitted to have access to narcotic drugs. As a participant in the IPN, complainant was assigned a case manager. In May 2006, complainant was involved in an altercation at work with a coworker that ultimately resulted in the Clinic's Chief Medical Officer issuing complainant a Notice of Trespass Warning which informed her that she was not authorized, permitted or invited to remain on the facility's premises.
On September 28, 2006, complainant filed an EEO complaint. Therein, complainant claimed that she was subjected to a hostile work environment on the basis of disability (severe depression) as evidenced by the following incidents:
1. In 2005, after a patient complained about her, she was told to pack up her belongings and return to the agency's Gainesville facility;
2. On March 7, 2006 she was told she was not allowed to talk at staff meetings;
3. On May 22, 2006, her proficiency report was intentionally lost;
4. In June 2006, after having been released to return to work by her physician, she was prevented from returning to work;
5. On September 5, 2006, she was scheduled for a fitness for duty examination; and
6. On some unspecified date, a comment about her sexual orientation was made.
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 timely requested a hearing. The AJ rejected the agency's motion for summary judgment, held a hearing on June 26, 2008, and issued a decision on October 22, 2008. The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant, through counsel, submitted a lengthy statement on appeal. Her statement does not appear to acknowledge that she had a full hearing before an AJ or that he issued a decision, and she makes several arguments that are not entirely related to the harassment claim which was accepted for investigation. The statement does contain a long re-statement of facts, but it is difficult to ascertain what relief complainant seeks. The agency did not submit a response.
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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
To prove her harassment claim, complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in complainant's position would have found the conduct to be hostile or abusive. Assuming arguendo that complainant is an individual with a disability, she must also prove that the conduct was taken because of her disability. Only if complainant establishes both of those elements, does the question of vicarious liability for supervisory harassment present itself.
Upon review of the record and after considering the arguments on appeal, we find that the AJ made reasonable credibility determinations which are not contradicted by objective evidence, and his factual findings are supported by substantial evidence in the record. The AJ did not find complainant to be a credible witness. Regarding the individual incidents, the AJ found that complainant's proficiency report was never intentionally lost. Rather, it was her own conduct in initially refusing to sign it that created confusion as to its whereabouts. The AJ also found that she was never told to pack her bags and return to Gainesville. Rather, it was complainant who made comments about her former employer calling her and asking her to return. He also found that complainant was never told not to speak at staff meetings but that it was not unusual for her to make disruptive and inappropriate remarks.
The AJ also found that complainant's supervisor was a credible witness and that because of complainant's very unstable and disruptive behavior at work, he was justified in preventing complainant from returning to work until she had been cleared by the Employee Health Physician. The AJ further found that although complainant kept her appointment with the Employee Health Physician, she failed to bring the relevant medical documents with her and would not discuss her IPN status. The AJ found that that was the real reason she was not allowed to return to work.
Complainant has not acknowledged the standard of review by which the Commission is bound when addressing post hearing findings of fact. After considering all the testimony and making specific credibility determinations, the AJ concluded that the incidents alleged by complainant either did not occur or resulted from complainant's own inappropriate conduct in the workplace. He did not find them sufficiently severe or pervasive to create a hostile work environment, and he concluded that they were not unlawfully motivated. Complainant has not offered persuasive argument for reversing the AJ's conclusions of law, and we discern no basis to disturb his decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 12, 2010
__________________
Date
2
0120090844
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013