0120061060
09-14-2007
Teresa M. Gilbert, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Teresa M. Gilbert,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200610601
Agency No. 2004-0558-2004104066
Hearing No. 140-2005-00270X
DECISION
Complainant filed an appeal with this Commission from the November 1,
2005 agency decision finding no discrimination.
Complainant, a Medical Technologist, alleged that the agency discriminated
against her on the bases of race (Hispanic)2, sex (female), and in
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when she was subjected to harassment continuing from
June 2004, when the following occurred:
1. In June 2004, complainant overheard an altercation between the
Supervisory Medical Technologist (SMT) and a Phlebotomist in the Blood
Bank.
2. On June 4, 2004, complainant did not receive credit for compensatory
time earned.
3. On July 6, 2004, the SMT asked complainant to complete an English
Language Proficiency form.
4. On August 18, 2004, the Chief Medical Technologist (CMT) issued
a Report of Contact containing accusations about complainant to a
co-worker.
5. On September 7, 2004, the SMT denied complainant's request for
Christmas leave submitted on August 10, 2004.
6. On September 7, 2004, the SMT issued complainant a letter of written
counseling.
7. On September 7, and September 8, 2004, the SMT challenged complainant's
compensatory time earned.
8. On September 8, 2004, the SMT verbally counseled complainant regarding
manning her work station.
9. On September 8, 2004, the CMT threatened to charge complainant absence
without leave (AWOL) for two days.
10. On September 14, 2004, the Chief of Pathology and Laboratory Medicine
Service denied complainant's request for reassignment to another section.
The agency found, and complainant does not dispute, that complainant
withdrew her request for a hearing before an EEOC Administrative Judge
(AJ).
In its decision, the agency found that complainant had established
a prima facie case of disparate treatment based on race and sex
discrimination regarding alleged adverse actions taken against her.
Regarding reprisal, the agency found that complainant had not engaged
in prior protected EEO activity. The agency noted that complainant's
prior activity was a telephone inquiry which she made to the EEO office
regarding a discrimination issue but she was not sure which management
official was involved and that this event was insufficient to show that
complainant engaged in prior EEO activity or that the management officials
in the present complaint had any knowledge of complainant's action.
The agency also noted that although complainant also stated that the
reprisal started after she was a witness in Employee A's EEO complaint
in April 2005, Employee A stated that she had no prior EEO activity. The
agency further found that complainant was unable to show that the actions
complained of were based on her race, sex, or prior protected activity or
that the actions were sufficiently severe and pervasive so as to alter
complainant's working conditions or to create an objectively hostile
work environment. The agency concluded, after examining each of the
incidents identified by complainant, that complainant failed to show by
a preponderance of the evidence that management's explanations for its
actions were pretextual and/or that the agency's actions were motivated
by prohibited discriminatory or retaliatory animus.
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Harassment of an employee which would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or
reprisal is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). 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
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).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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). The prima facie inquiry
may be dispensed with when 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).
After a review of the record in its entirety, including consideration
of statements submitted on appeal, it is the decision of this Commission
to affirm the agency's decision.
Initially, the Commission addresses three preliminary matters complainant
raised on appeal. The Commission notes complainant's request that the
Report of Investigation prepared for Employee A's discrimination complaint
be considered as part of the record of this appeal. This request is
denied because the Commission does not find it material to reaching a
decision in the instant appeal. Although complainant also raises the
issue of misrepresentation on the part of a former representative as an
attorney, she has not indicated how this ultimately impacted her case.
The record reveals that complainant has remained an active participant
in the proceedings before the AJ even during the period that the union
representative was representing her and that prior to his becoming
involved, complainant was represented by other union representatives.
Further, EEOC Regulation � 1614.605(e) provides that the complainant shall
at all times be responsible for proceeding with the complaint whether or
not the complainant has designated a representative. Complainant has
also stated that she attempted to add retaliatory and adverse actions
which occurred subsequent to her filing of the instant complaint but
that the agency denied her requests. We note, however, that complainant
also stated that the agency's denial caused her to file two additional
EEO complaints. We find that the instant complaint has been correctly
defined.
The Commission next addresses the agency's finding of no discrimination.
Assuming without deciding that complainant has established a prima facie
case of discrimination based on sex, race, and reprisal, the Commission
finds that complainant was not subjected to a hostile work environment
and, even if she was, she has not shown that the hostility was motivated
by discriminatory animus or reprisal. The Commission further finds that
the agency has articulated legitimate, nondiscriminatory reasons for its
actions and complainant has failed to show by a preponderance of the
evidence that the agency's reasons were mere pretext to mask unlawful
discrimination.
Regarding incident 1, the Commission notes that there is conflicting
testimony regarding whether complainant was close enough to the
incident which occurred to have observed or to have been affected by it.
Nonetheless, what occurred was not directed towards complainant nor was
complainant involved in the incident. Complainant stated only that the
incident scared her and that she felt that should she upset the SMT, he
could react in a similarly negative manner towards her. The Commission
also notes that at the time of the taking of her affidavit, complainant
was no longer under the supervision of the SMT but under the supervision
of the CMT.
Regarding incident 2, there is no evidence that complainant was not
compensated for time worked. Complainant stated that she was offered
only the opportunity to work overtime and not compensatory time while
Employee B, a White female, and others were given the opportunity to
work compensatory time by the SMT, although he had stated to complainant
that his policy was not to grant compensatory time. Complainant stated
further, however, that the SMT informed her that he had granted Employee
B the compensatory time in error. Complainant also stated that the SMT's
policy was later changed to offer employees the choice between overtime
and compensatory time.
Regarding incident 3, complainant stated that only she and Employee A,
a Puerto Rican, were asked to complete an English Proficiency form by
the SMT and that the SMT told her that the form was being used to build
a bilingual roster of agency employees who could speak other languages.
She stated that she told the SMT that his explanation was odd since the
form did not ask about proficiency in any other language but English.
The record establishes that the SMT was given the forms by the Service
Secretary who had been provided them by the agency's Human Resources
(HR) office, through the CMT, and HR wanted the forms to be completed
by all new employees. The CMT also stated in her affidavit that the
forms were distributed to about five new employees in the unit.
Regarding incident 4, the record reveals that complainant's name was
mentioned in a Report of Contact involving Employee A. The record also
reveals that complainant's name was written in the Report of Contact
because she was identified as part of a statement taken by the CMT in
her investigation of an incident that Employee A had brought to her
attention.
Regarding incident 5, the record reveals that complainant's leave was
denied in order for the Blood Bank to be adequately staffed and to let
other employees who had not had Christmas off the year before be able
to have Christmas off. Complainant stated in her affidavit that all
the other employees were in the unit longer than she was.
Regarding incident 6, the record reveals that complainant was issued
a letter of counseling because she left her work station. Although
complainant states that the SMT was not her supervisor at the time, she
also stated that he was returned as her supervisor the following day.
Complainant also does not deny having left her work station, although
she stated that she left word with Employee C.
Regarding incident 7, the record reveals that the action was taken
because complainant needed to get the appropriate signatures in order
for her compensatory time to be credited to her.
Regarding incident 8, complainant stated that this incident related to
the written counseling she received in incident 6.
Regarding incident 9, the record reveals that complainant was requesting
sick leave and was informed that her leave would be charged to AWOL
because she did not have sufficient sick leave. The record also reveals
that complainant was not charged AWOL.
Regarding incident 10, the record reveals that complainant's request
for reassignment was denied because staffing was at a minimal level
to ensure care of patients and because the Chemistry laboratory where
complainant was temporarily assigned had need for additional employees.
The Commission accordingly concludes that complainant was not subjected
to discriminatory harassment or reprisal. What is apparent from the
record is that complainant's directness and outspokenness in the office,
her bringing to management's attention (particularly to the SMT's
attention) concerns about management not following office procedures,
and her questioning of management's actions strained the relationship
between the SMT and complainant and tension developed in the office.
Further, the record suggests that because of complainant's persistence in
questioning policies and practice in her unit, that management was careful
in adhering to rules when it came to complainant not for discriminatory
reasons but because complainant might raise questions in the future.
Also, even assuming that complainant may have been targeted for increased
scrutiny and isolation from her peers, the Commission cannot find that
more likely than not that discriminatory animus motivated the SMT or
management's actions against her.
The agency's decision finding no discrimination 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
September 14, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
2 Complainant identified herself as Hispanic, Mexican-American in her
affidavit.
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0120061060
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036