0120082764
01-30-2009
Cheryl A. Brown, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Cheryl A. Brown,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082764
Hearing No. 430200800016X
Agency No. 200406592007101654
DECISION
On June 2, 2008, complainant filed an appeal from the agency's May 16,
2008 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission affirms
the agency's final order.
BACKGROUND
Complainant worked as a registered nurse at the agency's medical facility
in Salisbury, North Carolina. On or around April 5, 2007, complainant
filed an EEO complaint alleging harassment on the bases of age (fifty
years old) and reprisal for prior protected EEO activity:
1. complainant's supervisor counseled her verbally on January 24, 2007
and in writing on February 5, 2007, for copying timesheets;
2. complainant's supervisor held complainant responsible for the failure
of other nursing assistants to perform their assignments on January 30,
2007;
3. the agency denied complainant thirty minutes of overtime on February 7,
2007;
4. on February 27, 2007, complainant's supervisor called complainant at
home, instructed her not to report to work, and subsequently told other
staff members her intent to get complainant fired and revoke complainant's
nursing license; and
5. on February 27, 2007, the agency temporarily detailed complainant,
pending an investigation for patient abandonment, and threatened
complainant with termination if she did not accept the detail.
At the conclusion of the investigation, 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). Complainant timely
requested a hearing.
The AJ held a hearing on April 3, 2008, issued a bench decision on April
3, 2008, and issued an order entering judgment on April 25, 2008. The AJ
found that complainant failed to prove her claim of harassment based on
age or reprisal because the harassment was not sufficiently severe or
pervasive to alter the conditions of her employment. In addition, the AJ
assumed arguendo that complainant had established a prima facie case of
disparate treatment based on age, but found that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The AJ concluded
that complainant failed to show that the agency's articulated reasons
were pretextual. The AJ also found that complainant established a prima
facie case of discrimination on the basis of reprisal, but that the agency
articulated legitimate reasons for its actions. The AJ found that the
evidence supported the notion that complainant and her supervisor had an
"oil and water" relationship, but this was insufficient to show pretext.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
In her pro se brief on appeal, complainant contends that there were
multiple deficiencies with the conduct of the hearing; she does not
challenge the AJ's findings. Complainant maintains that her attorney
erred in failing to (1) call her union representative as a witness,
(2) call a witness to testify that the supervisor threatened to get
complainant fired and revoke her license, (3) enter three 2006 reports of
contacts into evidence, (4) ask complainant's supervisor about writing
a letter of complaint to the board of nursing, and (5) ask a witness
whether she was told she could be terminated for supporting complainant
in her testimony. In addition, complainant appears to contend that
the AJ erred in not allowing complainant's husband to testify, failing
to have a union representative with complainant during the hearing,
not permitting a witness to review her previous testimony, and asking
complainant about her first EEO case.
ANALYSIS AND FINDINGS
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. National Labor Relations Board, 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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's conclusions of law were not erroneous.
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) she is a member of the
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); 29 C.F.R. � 1604.11. The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
The AJ found that complainant failed to adequately show she was subjected
to harassment that was sufficiently severe or pervasive to alter the
conditions of her employment when the agency (1) ordered complainant to
concentrate on her charge nurse duties, and (2) called complainant at
home, informing her she was temporarily detailed pending an investigation.
The AJ further determined that the evidence did not support complainant's
claim that she was threatened with termination.
The Commission finds that there was substantial evidence in the
form of witness testimony at the hearing to support the AJs findings.
We determine that at the hearing, the agency's witnesses denied that they
threatened complainant with termination. In addition, it was reasonable
for the AJ to find that the alleged incidences of calling the complainant
at home and ordering her to concentrate on her charge nurse duties were
not severe enough to alter the conditions of complainant's employment.
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). Generally, the complainant
must 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, because 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 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981).
For the disparate treatment claims of discrimination based on age and
reprisal for prior EEO activity, the AJ found that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The agency's
witnesses testified at the hearing that complainant was disciplined
because she used profanity when directed not to copy the timesheets of
other units, denied overtime because she lacked prior approval, ordered
to concentrate on her charge nurse duties as part of her supervisor's
duties, and contacted at home and temporarily detailed because of an
investigation. Furthermore, complainant offered no evidence, other
than her own testimony, to support her allegation that the agency's
actions were motivated by her age in that her supervisor was jealous of
complainant's relative youth and good health.
The Commission finds that there is substantial evidence to support the
AJ's finding that complainant failed to establish pretext. Complainant
admitted at the hearing that she copied the timesheets of other units.
In addition, the agency's witnesses testified that even though complainant
was denied overtime, the agency awarded her compensatory time for that
day. The agency's witnesses denied threatening to terminate complainant
and testified that the agency assigned several staff members involved in
the scheduling incident, which resulted in an investigation, to temporary
details, not just the complainant.
Furthermore, the Commission finds that complainant had a full
and fair opportunity to demonstrate that the agency discriminated
against complainant. Mayer v. Department of Agriculture, EEOC Request
No. 05930540 (August 12, 1993) (holding that EEOC regulations are designed
to allow an individual a "full and fair opportunity to air his or her
allegations of discrimination"). Complainant was represented by counsel
at the hearing, and the lack of additional representation in the form
of a union representative was not prejudicial to complainant's case.
The hearing transcript does not reveal that the AJ exhibited bias in
favor of the agency.
In addition, 29 C.F.R. � 1614.109(e) provides:
The administrative judge shall have the power to regulate the conduct
of a hearing, limit the number of witnesses where testimony would be
repetitious, and exclude any person from the hearing for contumacious
conduct or misbehavior that obstructs the hearing. The administrative
judge shall receive into evidence information or documents relevant to
the complaint. Rules of evidence shall not be applied strictly, but the
administrative judge shall exclude irrelevant or repetitious evidence.
The record reveals that the allegedly excluded testimony and evidence was
either repetitious or irrelevant. For example, the reports of contacts
and the union representative's knowledge of those reports pertain to
events that occurred in 2006 rather than the events that occurred in
2007, which was the subject of the hearing. Additional testimony from
one witness regarding the supervisor's desire to remove complainant or
revoke her nursing license would have been repetitious because another
witness testified at the hearing about overhearing the supervisor tell a
staff member that complainant would never be back and that the supervisor
would seek to have complainant's license revoked. Complainant's husband's
testimony would have been irrelevant to determining whether the agency
discriminated against complainant because he would have testified only
about complainant's mood and behavior. The Commission finds that even
if there had been error, it was harmless error and would not necessitate
remanding the case for a new hearing. Furthermore, the Commission finds
that even if the entirety of complainant's proposed witness list were
included in the hearing, substantial evidence would still support the
AJ's findings of no discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission affirms
the agency's final order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
January 30, 2009________________
Date
2
0120082764
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036