01A14558
01-13-2003
Sandra Gardner, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Sandra Gardner v. Department of Veterans Affairs
01A14558
January 13, 2003
.
Sandra Gardner,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A14558
Agency No. 2001-2576; 2001-2177
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a Licensed Practical Nurse (LPN) at the agency's Veteran Affairs
Medical Center, Birmingham, Alabama facility. Complainant sought EEO
counseling and subsequently filed formal complaints on February 2, 2000
and on July 21, 2000. Complainant alleged that she was discriminated
against on the bases of race (African-American), sex (female), disability
(hypertension and heart condition), age (D.O.B.11/22/51), and reprisal
for prior EEO activity<1> when she was subjected to a hostile work
environment based on the following incidents:
(1) her supervisor contacted her physician without authorization;
(2) her supervisor made negative comments about her in the presence
of other employees
her shift was changed from evenings to mornings;
she was charged with a computer security violation;
she was counseled for unprofessional behavior.<2>
At the conclusion of the investigation, complainant requested a hearing
and her cases were assigned to an EEOC Administrative Judge (AJ).
The AJ remanded the case to the agency for a final decision, however,
because complainant failed to comply with her order to submit pre-hearing
statements and exhibits.
In its final decision, the agency concluded that complainant failed
to establish that these incidents created a hostile work environment
based on her race, sex, disability, age or in reprisal for her previous
protected EEO activity. The agency further found that even assuming that
the incidents occurred as described by complainant, the agency provided
legitimate non-discriminatory reasons for its actions which were not shown
to be a pretext for discrimination. In particular, the agency found
that the conduct at issue was not shown to be insulting, denigrating
or harassing within the meaning of the law. According to the agency,
complainant's scheduled shift was changed from evening to days on a
temporary basis, to afford her light duty work related to her knee injury
and not to harass her. The agency also concluded that complainant's
supervisor (RMO1) was required to report a possible security breach where
complainant may have compromised the use of her code to an unauthorized
individual. According to the agency, the incident was not shown to be
motivated by discrimination. Finally, the agency concluded that there
was no evidence that RMO1 contacted complainant's physician on the day
in question or that she made negative comments related to complainant's
poor health and as such the agency found them to lack credibility.
On appeal, complainant reiterated the arguments and evidence she relied
on during the investigation. The agency argues that its decision was
correct and requests that we affirm its FAD.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant alleges she was subjected to a hostile work environment
because of her race, sex, age, disability and in reprisal for filing
EEO complaint. To prevail she must demonstrate she is a member of 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 the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11;
See Flowers v. Southern Reg. Phys. Svc, 247 F3d. 229 (5th Cir. 2001)
(applying the principles of Title VII's prohibition against harassment
to cases brought under the Americans with Disabilities Act (ADA)).
Whether the harassment is sufficiently severe to trigger a violation of
Title VII and the Rehabilitation Act must be determined by looking at all
the circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
After a review of the evidence, the Commission concludes that complainant
failed to establish that these incidents created a hostile work
environment because of the complainant's asserted protected status.<3>
We assume for purposes of our analysis of complainant's disability claim,
that complainant is an individual with a disability as that is defined
by the Rehabilitation Act. Even assuming complainant's coverage under
the law, she has not shown by a preponderance of the evidence that she
was subjected to unlawful harassment because of a disability. As an
initial matter, complainant asserted that she was denied a reasonable
accommodation which she claimed was a request to be free from the stress
created by her supervisor's harassment. We interpret her testimony as
stating a claim of discriminatory harassment and not a claim of denial
of a reasonable accommodation. With this in mind, we review the various
incidents alleged based on whether they were severe and pervasive enough
to create an objectively hostile work environment.
We note that complainant's testimony indicated that she conceded the
change in her shift was done to accommodate a temporary knee injury and to
allow her to do desk work. She did not contest that she later returned
to her regular night shift and her regular duties on the IV team, once
she was able to walk without crutches. Her testimony and the evidence
did not establish that the change in shift was done to harass her or
for any discriminatory reason.
During the same time period, complainant alleges that she was unfairly
disciplined for an altercation involving a co-worker. Specifically,
while she was reassigned temporarily to work in the phlebotomy clinic,
she became engaged in an argument with a phlebotomist.<4> The evidence
demonstrated that the majority of witnesses interviewed corroborated
RMO1's assessment that complainant used profanity and was largely
responsible for the confrontation. The evidence supported the reasons
RMO1 gave for issuing complainant a written counseling for the incident
and there was no evidence that RMO1 was motivated by discriminatory
animus.
Complainant claimed that she was unfairly accused of a computer security
breach which was part of RMO1's harassment of her. The record discloses,
however, that RMO1 gave legitimate non-discriminatory reasons concerning
this incident, which complainant failed to show were a pretext for
discrimination. Specifically, RMO1 became aware that complainant's e-mail
messages had been inexplicably opened during a time when complainant
was off-duty. On being notified by security personnel, RMO1, in turn,
notified complainant in writing of proper computer security procedures.
The record indicated that no disciplinary action was taken against
complainant and that she was given the option of attending a class
to train her on computer security. There being no evidence that
this incident was based on discriminatory animus or that the agency's
explanation was a pretext, we conclude that complainant has not shown
the notification was due to discrimination.
The remaining incidents concerning RMO1's unauthorized contact with
complainant's physician and certain comments regarding complainant's
illnesses were not verified or corroborated by other witnesses.
In addition, assuming complainant's version of the events to be true,
we cannot conclude that they were so severe or pervasive as to rise to
the level of actionable harassment.
CONCLUSION
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 agency's
final decision.
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
January 13, 2003
__________________
Date
1Complainant alleged reprisal only with
respect to the incidents numbered 3,4 and 5.
2The agency dismissed other incidents (denial of work schedule
accommodations to attend school and denial of annual leave ) on the
grounds that complainant raised them in grievances filed before she
initiated EEO counseling. Complainant did not contest the agency's
dismissal in her appeal.
3This decision regarding the specific incidents alleged, does not
disturb the Commission's finding of discrimination affirmed in EEOC
Appeal No. 01A30118 in which the AJ found discriminatory harassment
in reprisal for complainant's protected EEO activity based on other
specified incidents.
4A phlebotomist is a technician who draws blood from patients.