0120110878
05-17-2011
Angelina Bannister, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Angelina Bannister,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110878
Hearing No. 461-2010-00073X
Agency No. 200L-0629-2009101799
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s October 28, 2010 final order concerning
her equal employment opportunity (EEO) complaint alleging 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. For the following
reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Pharmacist at the Agency’s Community Based Outpatient Clinic
in Baton Rouge, Louisiana. On June 19, 2009, Complainant filed an EEO
complaint alleging that the Agency discriminated against and subjected
her to a hostile work environment in reprisal for prior protected EEO
activity when:
1. On February 13, 2009, Complainant’s second-level supervisor (S2)
allegedly publicly berated Complainant in a condescending and derogatory
manner in front of patients and fellow co-workers, threatened Complainant
with disciplinary action for insubordination and issued Complainant a
written letter of counseling for insubordination;
2. On February 17, 2009, S2 issued her a written letter of counseling
for not following a direct order;
3. On March 23, 2009, Complainant worked overtime however, S2 denied
her monetary compensation for the work;
4. On March 27, 2009, Complainant worked overtime however, S2 denied
her monetary compensation for the work;
5. On April 13, 2009, S2 reassigned and/or assigned her duties to process
CPRS orders and to check prescriptions at the SCRIPTPRO1;
6. On April 17, 2009, Complainant’s first-level supervisor (S1) issued
her a written letter of counseling for unprofessional behavior in the
workplace; and,
7. On June 10, 2009, Complainant received written notification of her
proposed removal from federal service.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing; however, on October 20, 2010, the
AJ granted the Agency’s motion and issued a decision without a hearing.
Initially, in her decision, the AJ determined that Complainant had
failed to establish a prima facie case of reprisal discrimination.
Nonetheless, the AJ assumed arguendo that Complainant had established a
prima facie case and found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim
(1), (2), and (6), the Agency issued Complainant written and verbal
counseling for insubordination relative to entering prescriptions,
failure to follow a direct order to leave the building after hours
of operation, and for unprofessional behavior and failure to follow
instructions in the workplace. The AJ noted that Complainant argued
that the February 17, 2009 counseling relative to her refusal to leave
the building after hours reflected her being singled out due to her work
on an EEO complaint. The AJ determined, however, that the record lacked
any evidence that Complainant obtained prior approval for use of the
building in accordance with Agency policy. Additionally, Complainant
had previously been issued a similar verbal counseling by S2 for her
use of Agency equipment for personal use after hours on August 21, 2008.
As to Complainant’s overtime allegations in claims (3) and (4),
the AJ determined that between March 23, 2009 and March 27, 2009,
Complainant was scheduled to work at the Agency’s clinic in Hammond,
Louisiana to cover for another employee’s absence. Agency policy
allowed employees to earn compensatory time for time in travel status
away from an employee’s official duty station. Complainant was
offered compensatory time for her travel from Baton Rouge to Hammond,
but refused to accept it due to her preference for overtime. Further,
the AJ found that Agency management notified all employees on March 5,
2009, that overtime and compensatory time requests must be transmitted to
management on the date of the request with a business justification for
the employee’s presence after the tour of duty. The AJ concluded that
Complainant failed to show that she was even entitled to overtime based
on the clear Agency policy allowing an employee to earn compensatory time
for travel status away from her official duty station and her admitted
rejection of compensatory time offered to her.
Regarding claim (5), Complainant was reassigned and removed from
direct patient care duties pending the conclusion of an Administrative
Investigation Board (AIB) investigation into allegations that Complainant
verbally abused and delayed care to patients between October 23, 2008,
and January 29, 2009. Finally, as to claim (7), the Agency based
Complainant’s proposed removal on the conclusions of the AIB review
memorandum which concluded that Complainant had not followed established
policies and procedures regarding employee conduct and interaction
with patients. Further, the Agency considered Complainant’s past
reprimand and four acts of counseling.
The AJ determined that Complainant had presented no evidence establishing
that the Agency’s reasons were pretextual. As a result, the AJ
found that Complainant had not been discriminated against as alleged.
Additionally, the AJ found that the Agency’s alleged conduct did not
rise to the level constituting a discriminatory hostile work environment.
The AJ determined that Complainant presented no evidence showing that
any of the challenged conduct or personnel actions was objectively
offensive, abusive or hostile or based on Complainant’s prior protected
EEO activity. Accordingly, the AJ found that Complainant had not been
subjected to a hostile work environment. The Agency subsequently issued
a final order adopting the AJ’s decision.
On appeal, Complainant, through counsel, alleges that the AJ’s
decision was based on bias and prejudice against her. Specifically,
Complainant’s counsel alleges that the AJ “suggested” that
Complainant transfer her entire case to the Merit Systems Protection
Board. Complainant’s counsel alleges further bias by the AJ in her
decision to schedule the hearing date one day prior to a major Jewish
holiday despite counsel’s requests to reschedule. Further, Complainant
contends that she has presented sufficient evidence indicating that the
Agency subjected her to a hostile work environment based on her prior
protected EEO activity which the AJ ignored. Accordingly, Complainant
requests that the Commission reverse the final order. The Agency requests
that the Commission affirm the final order.
ANALYSIS AND FINDINGS
Decision Without a Hearing
The Commission must first determine whether it was appropriate for
the AJ to have issued a decision without a hearing on this record.
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, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to
a motion for a decision without a hearing).
The courts have been clear that summary judgment is not to be used
as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, “there is a need for strident
cross-examination and summary judgment on such evidence is improper.”
Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (Feb. 24, 1995).
Upon review of the record, the Commission determines 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 Commission concludes that, even assuming all facts
in favor of Complainant, a reasonable fact finder could not find in her
favor, as explained below. Therefore, no genuine issues of material
fact exist. Additionally, despite Complainant's contentions on appeal,
the Commission finds no evidence in the record that the
AJ processed Complainant's case in an improper manner or demonstrated a
bias against her. See 29 C.F.R. § 1614.109. Under these circumstances,
the Commission finds that the AJ's issuance of a decision without a
hearing was appropriate.
Disparate Treatment
The Commission notes that a claim of disparate treatment is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the Agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
Complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June
8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
In the instant case, the Commission finds that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
as to claim (1), S2 stated that Complainant was asked by her supervisor
to enter prescriptions into the system and she failed to do so. ROI,
S2’s Aff., at 11. When S2 questioned Complainant, she replied that
she was not entering them because she felt that they should be given to
someone else. Id. S2 noted that the all of the pharmacists had received
an equal amount of prescriptions and Complainant was the only pharmacist
who refused to enter prescriptions. Id. at 12. Complainant refused
to follow her supervisor’s orders and would not stop questioning
S2; therefore, S2 issued Complainant a written letter of counseling.
Id. at 18.
As to claim (2), S2 asserted that Complainant was issued a written
counseling after she was found in the building after hours and after her
tour of duty had ended. ROI, S2’s Aff., at 22. S2 asked Complainant
to leave the building because she had not been given permission to stay
in the building after hours, but Complainant refused to leave. Id. at 23.
Complainant had previously been counseled regarding a similar incident and
as a result, S2 issued a written counseling. Id. at 23-24. As to claims
(4) and (5), S2 affirmed that Complainant wanted overtime for her travel
time while she covered for another pharmacist at the Hammond clinic.
Id. at 45. S2 averred that all of the pharmacists took turns covering
at the Hammond clinic and all were given compensatory time for their
travel time pursuant to the Agency’s handbook. Id. After Complainant
refused to accept the compensatory time, S2 received guidance from the
Fiscal Office indicating that the Agency could only grant Complainant
compensatory time and not overtime. Id. at 47.
As to claim (5), Complainant was reassigned while an investigation
was conducted into patients’ complaints regarding Complainant’s
unprofessional behavior. ROI, S2’s Aff., at 52. S2 maintains that
Complainant was pulled away from direct patient contact in the counseling
area after the Agency received at least four complaints directly from
patients. Id. at 52-53. In regard to claim (6), S1 stated that he
issued Complainant a written counseling after he witnessed Complainant
and another employee engage in a loud and unprofessional argument. ROI,
S1’s Aff., at 5-6. S1 added that both employees received written
counseling for the incident. Id. at 8. Finally, regarding claim (7),
S2 affirmed that she issued the notice of proposed removal after the
investigation found that Complainant had engaged in conduct unbecoming
of a federal employee. Id. at 64. S2 also cited Complainant’s prior
counseling and behavior issues. Id.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec'y Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. at 256. Construing the evidence
in the light most favorable to Complainant, the Commission finds that
Complainant has not shown that any of the Agency’s actions were based
on discriminatory animus or that the reasons articulated by the Agency
for its actions were mere pretext to hide unlawful discrimination.
Hostile Work Environment
The Commission notes that harassment of an employee that would
not occur but for the employee's race, color, sex, national origin,
age, disability, religion or prior EEO activity is unlawful, if it is
sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC
Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d
1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris
v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a
working environment is hostile, factors to consider are the frequency
of the alleged discriminatory conduct, its severity, whether it is
physically threatening or humiliating, and if it unreasonably interferes
with an employee's work performance. See Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's
purview.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant
must show that: (1) he belongs to a statutorily protected class: (2) he
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 her statutorily protected class; (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; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
In the instant case, the Commission finds that the AJ’s determination
that Complainant failed to establish that she was subjected to a hostile
work environment is supported by substantial evidence in the record.
Complainant has not shown that she was subjected to harassment in the
form of unwelcome verbal or physical conduct involving her protected
classes, or the harassment complained of was based on her statutorily
protected class. Further, Complainant has not shown that the purported
harassment had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. While Complainant has cited various incidents where
Agency management took actions that were either adverse or disruptive
to her, the Commission finds that Complainant fails to show that these
incidents were based on Complainant’s prior protected EEO activity.
In so finding, the Commission notes that EEO laws are not a civility code.
Rather, they forbid “only behavior so objectively offensive as to alter
the conditions of the victim's employment.” Oncale v. Sundowner Offshore
Serv., Inc., 523 U.S. 75, 81 (1998). Accordingly, the Commission finds
no reason to disturb the AJ’s issuance of a decision without a hearing.
CONCLUSION
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 (Nov. 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
May 17, 2011
Date
1 The record reveals that CPRS is a computerized reporting system used
for pending pharmacy orders while SCRIPTPRO is an automated machine that
processes prescriptions.
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0120110878
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110878