01a55602_r
09-08-2006
Carol Gregory, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Carol Gregory v. Department of Veterans Affairs
01A55602
September 8, 2006
.
Carol Gregory,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55602
Agency No. 200H-0542-2004103923
DECISION
Complainant filed a formal EEO complaint in which she claimed that the
agency discriminated against her on the bases of her national origin (West
Indian), race (Black), color (black), sex (female) and age (53) when:
1. On July 16, 2004, the nurse educator publicly addressed complainant
about her tardiness in front of her orientation class which made
complainant feel worthless and belittled.
2. On July 19, 2004, when class was not in session, the nurse educator
informed complainant that she could not open or read a book in her class
although a White nurse was allowed to knit from a pattern book every
day during class.
3. On July 2, 2004, the nurse educator took complainant's math pre-test
from her when she saw complainant made only one mistake and never gave
it back to complainant although complainant asked for it.
4. On July 29, 2004, the nurse educator publicly corrected complainant
about her nursing skills in front of the orientation class, told
complainant she didn't think complainant was a nurse, and told the
orientation class the nurse recruiter was not bringing good nurses,
comments which complainant found personally devastating.
5. On or about August 4, 2004, the nurse educator raised her voice at
complainant when she asked a question. Complainant contends that White
nurses were not similarly attacked for asking questions.
6. On August 5, 2004, the nurse educator publicly humiliated complaint
in front of the class by saying she would not recommend complainant as
a nurse in the agency.
7. On August 6, 2004, the nurse educator screamed at complainant when
complainant asked a clarifying question, which made complainant feel
ashamed and embarrassed in front of the other nurses in her orientation
class.
8. On August 10, 2004, the charge nurse of 138A informed complainant
that the nurse educator told her that complainant was to have no form
of contact with patients, which complainant found personally humiliating.
9. On August 14, 2004, the nurse educator informed complainant she
would be terminated during her probationary period by August 20, 2004,
due to performance issues.
10. On August 16, 2004, complainant was only allowed two hours to study
for a CPR test although the nurse educator gave complainant's classmates
CPR training for the entire day that she assigned complainant to ward
138A.
11. On August 10, 2004, when complainant arrived on ward 138A, she was
not allowed to work as a nurse and was only allowed to feed patients.
12. As of August 16, 2004, complainant had not been assigned to a unit
as a registered nurse but had been detailed to the Director's office to
perform administrative tasks.
13. On November 23, 2004, complainant was informed by letter that she
was being terminated with an effective date of November 29, 2004.
14. On December 7, 2004, complainant was informed she owed the agency
$7,203.74 for repayment of a recruitment bonus and uniform allowance
received at the time of her appointment.
On November 23, 2004, the agency accepted claims 11-14 for investigation,
but dismissed claims 1-10 pursuant to 29 C.F.R. � 1614.107(a)(1)
on the grounds of failure to state a claim. The agency determined
that the alleged incidents in claims 1-10 do not rise to the level of
an actionable hostile work environment. The agency stated that these
alleged incidents were not sufficiently severe as complainant failed to
demonstrate harm to a term, condition, or privilege of her employment.
The agency further determined that the alleged events do not meet the
test for pervasiveness as they occurred over a period of one month.
The agency investigated claims 11-14 of the complaint and thereafter
notified complainant of her right to elect either a hearing before
an EEOC Administrative Judge or a final action issued by the agency.
Complainant did not respond to the notice. On July 21, 2005, the agency
issued a final action wherein it determined that no discrimination
occurred. According to the agency, complainant failed to establish
a prima facie case under the alleged bases. Assuming arguendo, that
complainant had established a prima facie case, the agency stated that
complainant was not allowed to work as a nurse, and was only allowed to
feed patients because she had not yet completed her orientation and had
not been cleared by the instructors to work on the unit. According to
the agency, complainant was detailed to the Patients Transfer Office
while her charges against the education instructor were investigated.
The agency noted that complainant had not yet been cleared to work on the
Patient Care Unit yet and thus she could not work there. With regard
to complainant's termination, the agency stated that complainant,
a probationary employee, was told on November 8, 2004, that she needed
to complete her skills validation before she could be released to work
on the Patient Care Unit. The agency stated that complainant responded
that she might resign and was thus told that she was welcome to return and
complete the original plan, and she was given a deadline of November 12,
2004 to decide. According to the agency, complainant did not respond
by the deadline and a recommendation was subsequently made that she
be terminated after the agency waited an additional ten days without a
response from complainant. As for the repayment of the recruitment bonus
and uniform allowance, the agency determined that it is standard procedure
that if the employee leaves, whether it's of their own free will or it's
because they are terminated from employment, they must repay a prorated
share of the $8,000 recruitment bonus as well as any uniform allowance.
The agency determined that it articulated legitimate, nondiscriminatory
reasons for its actions. The agency determined that complainant offered
no evidence to establish pretext.
On appeal, complainant contends that the racial and ethnic prejudice
of the education instructor was the reason that perceptions developed
that she was not fit for duty as a registered nurse and that she did
not complete orientation. Complainant maintains that she should have
been allowed to perform the nursing duties which she had been hired to
perform rather than redo her orientation. Complainant argues that the
agency's administrative board documented that the education instructor
treated her in a discriminatory manner.
In response, the agency asserts that complainant failed to identify
a similarly situated employee who was treated differently than her.
The agency asserts that even if the complainant established a prima facie
case, it articulated several legitimate, nondiscriminatory reasons for
terminating complainant. The agency notes that complainant left the
agency without prior approval and/or notification and refused to return
to work when asked to do so.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a
showing that age was a determinative factor, in the sense that �but for�
age, complainant would not have been subject to the adverse action at
issue).
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.
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. 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 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
Harassment is actionable only if the incidents to which complainant
has been subjected were sufficiently severe or pervasive to alter
the conditions of complainant's employment and create an abusive
working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998). To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she 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 the statutorily protected
class; and (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. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998).
Initially, we shall address claims 1-10 which were dismissed in the
partial dismissal on the grounds of failure to state a claim. Upon review
of the alleged incidents, we find that these events are not of sufficient
severity to constitute a hostile work environment. Further, the matters
at issue did not cause complainant to suffer harm to a term, privilege
or condition of her employment. Accordingly, the agency's dismissal of
claims 1-10 on the grounds of failure to state a claim was proper.
Regarding claims 11 - 14, we will assume, arguendo, that complainant
has established a prima facie case of discrimination on the bases of
national origin, age, race, color and sex. Next, we shall consider
whether the agency articulated legitimate, nondiscriminatory reasons
for its actions. The agency stated that complainant was not allowed to
work independently in a patient care unit and was only allowed to feed
patients because she had not completed her orientation and associated
skills validation. As for complainant's transfer from the patient care
area to the PTO Office, the agency stated that complainant reported that
she felt uncomfortable working in a patient care unit while not being
able to independently function as a registered nurse. The agency further
stated that the transfer was intended to utilize complainant's ability
to conduct UR reviews while her charges against the nurse educator
were being investigated. With regard to complainant's termination,
the agency stated that complainant was offered the opportunity to
continue her orientation, including validation of her clinical skills,
with different personnel, but that complainant failed to respond to
the offer by the specified deadline. With respect to the repayment of
the recruitment bonus and the uniform allowance, the agency stated that
complainant failed to fulfill her responsibilities under the recruitment
service agreement which required that she complete 36 full consecutive
months of employment. The Commission finds that the agency articulated
legitimate, nondiscriminatory reasons for its actions.
We find that complainant failed to refute the agency's stated reasons for
its actions. Complainant argues that the nurse educator's discriminatory
biased attitude toward her prevented her from being assigned to work
as a nurse in the patient care area. Although the record indicates
that the Administrative Board of Investigation found that the nurse
educator should be reassigned to another nursing position due to her
lack of cultural competencies, the record is replete with instances where
complainant failed to progress and conduct herself appropriately during
her orientation. Complainant was at times disobedient as she insisted in
doing things her way rather than the agency practice. Complainant also at
times failed to respond when agency officials spoke to her. There were
instances where complainant had difficulty following instructions.
The record supports the agency's position that complainant had not
successfully completed her orientation and validated her clinical skills.
We find that the agency acted appropriately and without discriminatory
intent when it did not allow complainant to serve as a nurse in the
patient care area. As for complainant's reassignment to the PTO Office
to perform administrative tasks, it is apparent that there was reasonable
doubt that complainant was ready to function in the patient care area
and that the agency felt that it could utilize complainant's skills while
investigating her charges against the nurse educator. We find that the
agency acted appropriately and without discriminatory intent.
As for complainant's termination, the record is clear that complainant
was afforded an opportunity to redo her orientation and validate
her clinical skills. Nevertheless, complainant did not accept the
agency's offer and left the agency with little recourse but to terminate
her employment. Any difficulties that complainant experienced with
the nurse educator do not mitigate the fact that complainant did not
pursue this opportunity that the agency provided her. With regard to
the repayment of the recruitment bonus and the uniform allowance, the
record establishes that complainant entered into a recruitment service
agreement that provided that complainant would be required to repay
the recruitment bonus in accordance with prescribed regulations if she
did not complete the obligated service of 36 full consecutive months of
employment. Complainant also signed an agreement that required she repay
a prorated share of her uniform allowance should she resign her position
within twelve months of the date of her initial uniform allowance.
Complainant was terminated and did not resign and therefore complainant
does not appear to be obligated to repay her uniform allowance. However,
the agency's attempt to seek repayment was not discriminatory and it
certainly was entitled under the recruitment service agreement to seek
repayment of the recruitment bonus. We find that complainant failed
to show by a preponderance of the evidence that she was discriminated
against on the bases of her national origin, age, sex, race or color.
The agency's decision 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 8, 2006
__________________
Date