0120112513
09-30-2013
Pamela L. Taylor, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Pamela L. Taylor,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112513
Hearing No. 430-2008-00526X
Agency No. 200405902008100143
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 31, 2011 final order concerning her equal employment opportunity (EEO) complaint. At the time of events giving rise to this complaint, Complainant worked as a Patient Representative, GS 9 at the Agency's Hampton Virginia Medical Center facility in Hampton, Virginia. For the reasons that follow, we AFFIRM the Agency's final order implementing the EEOC Administrative Judge's (AJ's) decision.
On December 3, 2007, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Brown), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., when the following incidents allegedly occurred:
1. On February 21, 2007, she was placed under the supervision of a supervisor that she filed a previous EEO complaint against.
2. On February 21, 2007, she alleged that management would revoke her right to union representation.
3. On September 20, 2007, during her interview for the position of Lead Patient Representative, she alleged that [an Agency official's] placement [on] the panel was done to "increase her anxiety, offend, anger, and humiliate her."
4. On October 5, 2007, she was informed that the position of Lead Patient Advocate, Vacancy Announcement Number 183-07, would not be filled due to cancellation.
5. From October 15, 2007, through July 26, 2007, she requested assistance with her work and it was denied.
6. On October 15, 2007, she was denied a meeting with the facility director.
7. On October 17, 2007, her job duties were changed.
8. On November 21, 2007, she was given a fully successful performance rating instead of a higher rated evaluation.
9. On November 27, 2007, she was denied the right to have union representation present during a staff meeting.
At the conclusion of the EEO investigation, Complainant was provided a copy of the investigative file, and she requested a hearing. The Agency filed a motion for a issuance of a decision without a hearing on April 12, 2010 to which Complainant responded on April 26, 2010. On January 5, 2011, the AJ issued a decision without a hearing finding that Complainant failed to show by preponderance of the evidence that she was subjected to a hostile work environment or discriminated against as alleged. Specifically, the AJ found that the circumstances described were not sufficiently severe and/or pervasive to constitute a hostile work environment, nor was there evidence that the actions alleged related to Complainant's race, sex, or her prior EEO participation.
On appeal, Complainant reiterates many of the arguments she made in her initial complaint. She requests that the Commission reverse the Agency's final order implementing the AJ's decision and find that the AJ improperly issued a decision without a hearing in favor of the Agency. Complainant argues that the AJ abused her discretion and had a lapse in judgment when she denied Complainant's request for a hearing. Complainant contends that the AJ allowed the Agency to engage in one-sided ex parte communications with her.
We find that the AJ properly issued a decision without a hearing. After a careful review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of undisputed facts, she was given an opportunity to respond to the motion and statement of undisputed facts, and she had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
We concur with the AJ's findings with respect to Complainant's harassment allegations as set forth in the decision. We agree that Complainant has not established that the Agency's actions in this case were motivated by any discriminatory animus. Furthermore, we find, in light of the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), no persuasive evidence that the incidents, even if accurately described by Complainant, were sufficiently severe or pervasive to have altered the conditions of Complainant's employment and create an abusive working environment. For the most part, Complainant seeks to classify standard supervisory directives and decision-making as unlawful harassing behavior without establishing that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Additionally, we concur with the AJ's findings regarding Complainant's allegations of disparate treatment on the basis of race, color, sex, and retaliation. The AJ found that Complainant failed to establish a causal link between her prior EEO activity and the adverse actions alleged in Claims 1 through 4. We agree that a year and a half after prior EEO participation is not proximate enough to establish a causal nexus. We concur with the AJ's reasoning that Complainant failed to establish that she was aggrieved by the actions complained of in Claims 5 and 6 because she was unable to show an injury in fact or establish tangible harm. Complainant also failed to present any evidence to establish that she was treated differently than any other similarly situated employee outside of her protected class under same or similar circumstances as those described in Claims 5 and 6. The AJ properly found that Complainant failed to establish that her change in job duties occurred because of her sex. Complainant's position that a supervisor assigned her additional work because of the supervisor's relationship with a male co-worker does not establish disparate treatment under any protected basis under Title VII. We concur with the AJ's finding that Complainant failed to establish a prima facie case of reprisal with respect to Claim 8. The record reflects that the rating official was not made aware of Complainant's prior EEO activity until approximately eight months after Complainant received her performance appraisal. The record reflects that the Agency provided a legitimate non-discriminatory reason for advising Complainant that she could not have union representation at a staff meeting, which Complainant failed to establish was pretext for discrimination. Additionally, Complainant cannot show that she was treated any differently than anyone outside of her protected category under same or similar circumstances with respect to Claim 9.
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
___9/30/13_______________
Date
2
0120112513
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112513