0120102430
05-04-2012
Avis R. Jackson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Avis R. Jackson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102430
Hearing No. 430-2008-00560X
Agency No. 2004-0558-2008100446
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 14, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Program Support Assistant in the Agency's Human Resources Management Services (HRMS) at the VA Medical Center in Durham, North Carolina. Complainant entered her position on or about August 5, 2007. Complainant's supervisor (S1) arranged for Complainant's co-worker, the Employee Relations Assistant (ERA), to train her and help her become acclimated to the office. After a few weeks, Complainant believed that she was not receiving adequate training from ERA and informed S1 that she believed that she was hindered in fully learning the duties of her position.
On October 2, 2007, Complainant applied for a Human Resources Assistant position. Complainant had only been employed with the Agency for approximately two months at the time she applied for the position. On October 30, 2007, Complainant learned that she had not been selected for the position. The selectee was the only applicant who was determined to be eligible for the position and was reassigned from the Asheville VA Medical Center.
On October 11, 2007, S1 issued Complainant an Informal Notice of Oral Counseling after Complainant responded harshly to an email from a co-worker. Complainant took issue with the co-worker referring to her as the new HRMS secretary. The counseling did not go in Complainant's personnel file, but advised her that her conduct was neither professional nor acceptable and would not be tolerated.
On October 23, 2007, Complainant was feeling sick and left work early. After Complainant left, ERA moved to Complainant's workstation to assist any employees who came into the office. ERA saw that Complainant's computer had been left on and was open to Complainant's work email. ERA read several of Complainant's emails and then shut down the computer by turning off the power switch. As a result, when Complainant returned the next day, she was locked out of her computer and needed assistance to log on.
On October 26, 2007, S1 received notification from a representative from the National Center for Health Promotion and Disease Prevention that she had not received service pins and plaques that she had ordered from Complainant. Complainant told the representative that HRMS did not have any pins or plaques and that they would have to be ordered. S1 called ERA to determine if there were any service pins or plaques in the department of which Complainant may not have been aware. ERA then informed S1 that there was an inventory of both pins and plaques, went to the Complainant's desk, and showed her where they were. Additionally, ERA found several other pins and awards that she and Complainant had worked overtime to process that had not been distributed. Complainant blamed the mistake on ERA's inadequate training. S1 then reviewed the process with Complainant and ERA. While S1 reviewed the process with Complainant at her desk, Complainant told S1 that she did not feel comfortable with ERA training her and preferred that S1 train her. Additionally, Complainant became upset, yelled that she was going to resign, and left the work area.
On October 27, 2007, Complainant filed a harassment complaint with the VA Medical Center police department regarding the previous day's incident. The Police Chief concluded that the issues raised in the police report filed by Complainant were not law enforcement issues and submitted the complaint to the Chief of HRMS (Chief) on or about October 30, 2007.
On November 9, 2007, the Chief issued Complainant a 90-day performance evaluation. The evaluation ranked Complainant as "Well" regarding the quantity and quality of work expected and how well employee had been accepted by co-workers and patients. In the remaining five categories, the Chief rated Complainant as "Fair." Complainant received an overall "Meets Requirements" average on the 90-day evaluation. Complainant was provided another copy of her position description and a performance improvement plan.
On November 13, 2007, S1 issued Complainant a Proposed Admonishment for the October 26, 2007 incident. Complainant submitted a rebuttal; however, S1 determined that an Admonishment was warranted and issued it on December 6, 2007.
Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected her to a hostile work environment on the bases of age (55) and in reprisal for prior protected EEO activity when:
1. From August 5, 2007 to present, her supervisor (S1) failed to fully train her to perform the full scope of her position;
2. On October 23, 2007, while Complainant was on sick leave, ERA entered her computer and read her emails;
3. On October 24, 2007, Complainant returned to work and discovered that she was locked out of her computer;
4. On October 26, 2007, S1 yelled at Complainant in front of her co-workers and customers;
5. On October 30, 2007, Complainant was notified that she was not qualified for the position of Human Resources Assistant under Vacancy Announcement No. 07-226;
6. On November 9, 2007, Complainant received an unfair performance appraisal; and
7. On December 6, 2007, Complainant received a letter of admonishment.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing on November 6, 2009, and issued a decision on March 25, 2010.
In the decision, the AJ initially assumed arguendo that Complainant had established a prima facie case of age discrimination and reprisal and determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to Complainant's non-selection for the Human Resources Assistant position, at the time of her application, Complainant had only been employed by the Agency for approximately two months. On October 13, 2007, the HRMS Specialist prepared the Certificate of Referral confirming that the only qualified candidate was the eventual selectee. The Specialist testified that Complainant and the other applicants were not qualified as they lacked the necessary specialized experience. As the selectee was the only qualified applicant, she was allowed a reassignment transfer.
Regarding Complainant's hostile work environment claim, Complainant claimed that the Agency failed to fully train her to perform her position and thereafter she received an unfair performance evaluation. S1 testified that she assigned ERA to train Complainant and to assist her in becoming oriented to her position. Complainant admitted that other employees also provided her assistance. When Complainant complained that ERA was not training her properly, S1 offered to train her personally. Even with the assistance from ERA, S1, and other employees, Complainant only received a "Meets Expectations" performance appraisal, which the Chief believed was justified based on Complainant's minimal performance and the counseling she had received for unprofessional conduct.
Next, Complainant alleged that S1 acted with discriminatory animus as to the December 6, 2007 Letter of Admonishment issued based on the incidents that occurred on October 26, 2007, and alleged that S1 yelled at her in front of customers. S1 testified that it was Complainant who became frustrated and began yelling that she was going to resign. Two other employees testified in support of S1's account of what transpired. The AJ determined that at the heart of Complainant's contentions was that she felt belittled and embarrassed in front of customers and co-workers when S1 attempted to review a procedure that ERA had previously gone over with her. In addition, Complainant testified that both S1 and ERA were standing over her and asking her questions which she admitted heightened her frustration. Additionally, the Complainant had previously been issued a Notice of Informal Counseling; therefore, the Letter of Admonishment was the appropriate next level of discipline.
As to Complainant's claims regarding her work computer, ERA admitted that when Complainant went home sick on October 23, 2007, she approached Complainant's computer to shut it down, but read Complainant's emails that were on the screen. The AJ determined that although ERA's actions could be characterized as improper, there was no evidence of discriminatory animus. Further, regarding Complainant's claim that she was locked out of her computer, the AJ determined that Complainant failed to present any evidence that the Agency was responsible, and it was more likely due to her failure to properly log off and shut down her computer.
Thus, the AJ concluded that the alleged incidents were not sufficiently severe or pervasive to constitute a hostile work environment. Additionally, there was no evidence that the alleged incidents were based on discriminatory or retaliatory animus. As a result, the AJ held that Complainant had not been subjected to a hostile work environment. The Agency subsequently issued a final order adopting the AJ's decision.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
In general, disparate treatment claims, such as the matter before us, are examined under a tripartite analysis whereby Complainant 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. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying the analytical framework described in McDonnell Douglas to an ADEA disparate treatment claim). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were a pretext for discrimination. Id. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. Of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Upon a review of the record, the Commission finds that the AJ's finding of no discrimination is supported by substantial evidence. The Commission concurs with the AJ's finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as set forth above. Specifically, as to Complainant's non-selection claim, the Human Resources Specialist testified that she prepared the Certificate of Referral for the Human Resources Assistant position and, of the ten applicants, only one was found qualified for the position. Hr'g Tr., at 100. The vacancy announcement stated that the position required one year specialized experience as a staffing assistant. Id. at 100-01. Complainant had general experience in Human Resources; however, she did not have any of the specialized experience required. Id. at 101. As a result, Complainant was not selected, and the selectee was allowed a reassignment transfer.
Regarding the Letter of Admonishment, S1 testified that she issued the proposal, which subsequently became a final Letter of Admonishment, based on Complainant's outburst during the October 2007 incident. Hr'g Tr., at 62. S1 testified that she took into account witness statements, Complainant's prior conduct, and the Agency's Table of Penalties and decided that the Admonishment was warranted. Id. at 86. Further, S1 noted that Complainant refused many of management's opportunities for training, but would complain that she was not properly trained. Id. at 87.
As to her evaluation, the Chief testified that Complainant had difficulties in acclimating to the position despite extensive attempts to get her trained for the position. Hr'g Tr., at 245. He further testified that he received feedback from employees about her inability to grasp what the position required and perform the position. Id. S1 added that Complainant was not successfully performing all of the duties of her position and there were areas she had not mastered. Id. at 113-14.
Finally, regarding the incidents related to her work computer and email, ERA testified that when Complainant left early, she sat at Complainant's workstation to assist customers and read emails that were open on her computer. Hr'g Tr., at 224. ERA further testified that she informed the Chief that Complainant had left her computer logged on and that she had read Complainant's emails that mentioned her. Id. The Chief asked ERA to shut off Complainant's computer, and ERA did so without properly shutting it down. Id. The record reveals that employees are issued individual, confidential usernames and use passwords to access Agency computers and systems. ERA testified that she did not do anything to lock Complainant out of her computer and shut off Complainant's computer so that she would not lose any work. Id. at 228.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. 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. As to her non-selection claim, one way Complainant can establish pretext is by showing that her qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may establish pretext as to her non-selection claim.
The Commission finds that the AJ's determination that Complainant failed to establish pretext is supported by substantial evidence in the record. The record and facts gleaned at the hearing fail to prove any evidence purporting to show that the Agency's actions were pretext for discriminatory or retaliatory animus. Accordingly, the Commission finds that Complainant failed to show that the Agency discriminated against her as alleged.
Finally, to the extent that Complainant contends that she was subjected to a hostile work environment with respect to the matters herein, the Commission find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The Commission finds that substantial evidence in the record supports the AJ's finding that the alleged harassment was not sufficiently severe or pervasive to rise to the level of a hostile work environment. Moreover, a finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus as discussed above. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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 4, 2012
Date
1 The Commission has renumbered Complainant's claims into chronological order for reference.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120102430
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102430