01a54356
11-15-2005
Sandra Reid, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Sandra Reid v. Department of Veterans Affairs
01A54356
November 15, 2005
.
Sandra Reid,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54356
Agency No. 200I-0316-2004100788
Hearing No. 110-2005-00065X
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.
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.
Complainant, a Claims Assistant, GS-4, at the agency's Regional Office
in Decatur, Georgia, filed a formal EEO complaint on January 23, 2004.
Therein, complainant claimed that the agency discriminated against her
on the bases of race (African-American) and age (D.O.B. 1/9/46).
On May 13, 2004, the agency issued a document identified as
"Partial Acceptance of EEO Discrimination Complaint - VA Case
No. 200I-0316-2004100788. . .." The agency determined that the instant
EEO complaint was comprised of five claims, which the agency identified
in the following fashion:
(A) on October 31, 2003, complainant was not promoted to the position of
Lead TIMS Clerk/Claims Assistant, GS-998-5/Target 6, Vacancy Announcement:
2003-166-AT;
(B) on October 9, 2003, her supervisor informed her that she was not
meeting productivity goals, but did not give her a performance memorandum;
(C) on an unspecified date, she claimed that she " [has] never . . .
had her current grade . . . adjusted since [she] was first hired
in 1988;"
(D) on an unspecified date, she claimed that "longevity on the job
doesn't count toward upward mobility;" and
(E) on an unspecified date, she claimed that "all of the personnel that
I work with have been promoted except me."
The agency accepted claims (A) and (B) for investigation. The agency
dismissed claims (C), (D) and (E) pursuant to 29 C.F.R. � 1614.107(a)(2),
on the grounds that these claims were not raised with an EEO Counselor
and that were not like or related to a matter for which complainant
underwent EEO counseling.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Thereafter, the agency filed two separate Motions.
In its motions, the agency requested that the AJ issue a decision without
a hearing, finding no discrimination. The agency argued that claim (A)
should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(4), on the grounds
that complainant elected to file a grievance on December 5, 2003, under
the negotiated grievance procedure prior to the filing of EEO complaint
on January 23, 2004. As to the merits of claim (A), the agency argued
that management articulated legitimate, nondiscriminatory reasons for its
actions which complainant failed to show were pretext for discrimination.
Regarding claim (B), the agency viewed this claim as a harassment claim.
The agency argued that complainant failed to show that she was subjected
to harassment based on her race and age because the incident identified
therein was not an adverse action.
On April 8, 2005, the AJ granted the agency's motion to dismiss. The AJ
determined that the agency properly set forth the undisputed facts and
applicable law in its motions, incorporated them in his decision,
and found no discrimination.
Regarding claim (A), the AJ found that complainant elected to file a
grievance on December 5, 2003, under the negotiated grievance procedure
prior to the filing of EEO complaint on January 23, 2004. The AJ further
found that complainant failed to establish a prima facie case of race and
age discrimination. The AJ found that a review of the record reflects
that no selection was made for the Lead TIMS Clerk/Claims Assistant
position.
Regarding claim (B), the AJ found that complainant failed to provide
evidence that she was discriminated against on the bases of race and age
when her supervisor criticized her for not meeting productivity goals,
but did not give her a memorandum.
On April 14, 2005, the agency issued a final order implementing the AJ's
decision finding no discrimination.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
Claim (A)
The Commission finds that a review of the record indicates that
complainant elected to file a grievance on December 5, 2003, prior to the
filing of EEO complaint on January 23, 2004, addressing the same matter
raised in the instant formal complaint. The grievance was pursued under
a negotiated grievance procedure that permits discrimination claims to
be raised. Therefore, we find that the AJ properly dismissed claim (A)
pursuant to 29 C.F.R. � 1614.107(a)(4).
Because we affirm the AJ's dismissal of claim (A) for the reason discussed
herein, we find it unnecessary to address the disposition of this claim
on the merits.
Claim (B)
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
It is also well-settled that harassment based on an individual's prior
EEO activity is actionable. Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group
of isolated incidents will not be regarded as discriminatory harassment
unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all of
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, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The harassers' conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant claimed that she was discriminated against when on October 9,
2003, her supervisor informed her that she was not meeting productivity
goals, but did not give her a performance memorandum. The record contains
an affidavit from complainant's Supervisor. Therein, the Supervisor
stated that prior to October 9, 2003, he issued complainant several
memorandums concerning her poor performance, especially in meeting
productivity standards. The Supervisor further stated that on October
9, 2003, he gave complainant "an oral counseling because her consistent
conduct, especially socializing during periods she was not on lunch or
breaks, resulted in her inability to required individual productivity
levels [emphasis added]."
The Commission determines that complainant failed to establish that she
was subjected to a hostile work environment. We find that complainant has
not shown that the actions alleged were sufficiently severe or pervasive
as to constitute hostile work environment harassment.
Accordingly, the agency's final order implementing the AJ's dismissal
of claim (A) and finding of no discrimination of claim (B) was proper
and is AFFIRMED.
Claims (C), (D) and (E)
In a partial dismissal dated May 13, 2004, the agency dismissed claims
(C), (E) and (E) pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds
that these claims were not raised with an EEO Counselor and that were
not like or related to a matter for which complainant underwent EEO
counseling.
The regulation set forth at � 29 C.F.R. 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim is "like or related" to the original
complaint if the later claim or complaint adds to or clarifies the
original complaint and could reasonably been expected to grow out of
the original complaint during the investigation. See Scher v. United
States Postal Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun
v. United States Postal Service, EEOC Request No. 05891068 (March 8,
1990). We find no indication that complainant raised claims (C), (D) and
(E) with an EEO Counselor prior to the filing of her formal complaint.
Moreover, claims (C), (D) and (E) do not add to or clarify the issues
raised with the EEO Counselor in claims (A) and (B). Therefore, we find
that the agency properly dismissed claims (C), (D) and (E) pursuant to �
Accordingly, the agency's dismissal of claims (C), (D) and (E) was proper
and is AFFIRMED.
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
November 15, 2005
__________________
Date