0120083635
05-14-2009
Wyonna K. Daniels, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Wyonna K. Daniels,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083635
Agency No. 2004-0558-2007103450
DECISION
Complainant filed an appeal from the agency's July 23, 2008 final
decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Nurse I at the agency's facility in Durham, North Carolina.
On September 28, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of disability (scoliosis),1
age (55 years old at the time of the incident), and in reprisal for
prior protected activity.
By letter dated December 14, 2007, the agency determined that
complainant's complaint was comprised of the following claims:
Whether complainant was subjected to harassment when:
1) During August 2007, complainant's supervisor sent an e-mail to everyone
on evening shift regarding using common sense when assigning beds and
recliners to guests when they are staying overnight.
2) During April 2005, while working the night shift alone without any
help from coworkers the night manager was hateful toward complainant.
3) During February 2005, while on approved leave caring for a family
member complainant became sick and called and spoke with a supervisor
and she acted harsh and cold toward her.
4) During October 2004, complainant e-mailed her manager pertaining to
work on the unit and she responded to complainant by saying, if you spend
more time working and less time socializing you could get more work done.
B) Whether complainant was treated in a disparate manner when on July
12, 2007, she was denied a promotion to a Nurse II position.
The agency dismissed claim (A) for failure to state a claim. The agency
stated that the alleged incidents do not rise to the level of an
actionable hostile work environment claim. However, the agency accepted
claim (B) for investigation.
At the conclusion of the investigation for claim (B), 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). In accordance with complainant's request, the agency issued
a final decision pursuant to 29 C.F.R. � 1614.110(b). The agency
found no discrimination with respect to claim (B). The agency found
that complainant failed to establish a prima facie case of retaliation
and/or age or disability discrimination. The agency further found that
it articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the agency stated that the Nurse Professional Standards
Board (NPSB or Board) found that complainant did not meet the nine
"dimensions" for a Nurse II position. The agency found that complainant
failed to establish that the agency's articulated reason for its action
was pretext for discrimination and/or retaliation.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the agency's final decision finding
no discrimination is improper. Specifically, complainant states that
she has been denied a promotion at least five times.
ANALYSIS AND FINDINGS
As 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law").
Claim (A)-Partial Dismissal-Hostile Work Environment Claim
The Commission finds that the agency properly dismissed claim (A)
for failure to state a claim. In Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of
Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment
is actionable if it is sufficiently severe or pervasive to alter the
conditions of the complainant's employment. The Court explained that
an "objectively hostile or abusive work environment [is created when] a
reasonable person would find [it] hostile or abusive:" and the complainant
subjectively perceives it as such. Harris, supra at 21-22. Thus, not
all claims of harassment are actionable. In the instant matter, we do
not find that the alleged incidents set forth in complainant's complaint
are sufficiently severe or pervasive to set forth an actionable hostile
work environment claim.
Claim (B)-Denial of Nurse II Promotion
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).
Assuming arguendo that complainant established a prima facie case
of discrimination and/or retaliation, the Commission finds that the
agency articulated legitimate, nondiscriminatory reasons for its action.
The record contains an affidavit from the Chair of the Board (C1) who
denied complainant's reconsideration request with respect to her promotion
to a Nurse II position. Therein, C1 states that the first Board found
that complainant met four out of the nine dimensions to qualify for
a Nurse II position; however, the first Board found that five of the
dimensions were not met at the Nurse II level.2 C1 further states that
when the second Board met, after complainant sought reconsideration,
"we accepted what the first Board said, and gave her credit for those
four [dimensions], and then reviewed the remaining five once again. And
of those five, one of those five dimensions was considered to be met, so
they gave her credit for that. So that makes a total of five out of nine.
But the other four were not met, and therefore, the recommendation was
not to promote."
The record also contains a memorandum to complainant from the Associate
Director of Nursing Programs (A1) dated July 6, 2007. Therein, A1
states that the NPSB met to reconsider her qualifications for a Nurse
II position and that the "NPSB accepts previous board recommendations
[that complainant] meet[s] dimensions A and E-G. [Complainant meets] B
upon this review. [Complainant does] not meet the Qualification Standards
for promotion to Nurse II in the following areas: C, D, H, and I."3
While complainant asserts that she meets all of the dimensions and
should be promoted to a Nurse II position, upon review of the record,
we find that complainant failed to establish, by a preponderance of
the evidence, that the agency's articulated reasons for its action was
pretext or discrimination and/or retaliation.4
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision finding no discrimination.
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
May 14, 2009
__________________
Date
1 For purposes of analysis only, we assume, without finding, that
complainant is an individual with a disability.
2 The record reflects that the nine dimensions for a Nurse II position
are A) Practice; B) Quality of Care; C) Performance; D) Education/Career
Development; E) Collegiality; F) Ethics; G) Collaboration; H) Research;
and I) Resource Utilization.
3 The record also reflects that various members of the NPSB stated that
they did not know the identity of the individuals when reviewing whether
their qualifications met the level of a Nurse II position. Therefore,
they were not aware of complainant's age, alleged disability, and/or
prior protected activity at the time she was not recommended for a
promotion to a Nurse II position.
4 While complainant on appeal asserts that she was denied a promotion at
least five times, the Commission will only address herein the accepted
claim, the July 2007 denial of a promotion.
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0120083635
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083635