01A42365
07-20-2004
Cheryle A. Gregory, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Cheryle A. Gregory v. Department of Veterans Affairs
01A42365
July 20, 2004
.
Cheryle A. Gregory,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A42365
Agency No. 200J-0506-2002101900
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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.<1> The appeal is accepted for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Licensed Practical Nurse (LPN) at the agency's Toledo
Outpatient Clinic, located in Toledo, Michigan. Complainant sought EEO
counseling and subsequently filed a formal complaint on April 23, 2002,
alleging that she was discriminated against and subjected to hostile
work environment harassment
based on her race (Black) and in reprisal for prior EEO activity
(arising under Title VII and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.) between
April 2001 through April 2002.<2>
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision. In its
FAD, the agency concluded that management articulated legitimate,
non-discriminatory reasons for its actions, and that complainant did not
demonstrate that management's reasons were a pretext for discrimination.
Claim (1)
Complainant alleged that in April 2001, she overheard her first line
supervisor (S1) and other clinicians, talking during their smoke break
that there must be something than �can be done� about complainant.
The agency found that S1, as well that the others clinicians, denied that
this conversation occurred. The agency also found that complainant's
witness (W1) of the incident, testified that she alone, not complainant,
was present when she overheard S1 and other clinicians talking during a
smoke break, and that they were talking that complainant always calls
�in�sick and �they need to let her [complainant] go and they needed
people that were going to be here to work.� The agency further found
that the W1 stated that she did not hear comments about complainant's
race or her prior EEO activity.
Claim (2)
Complainant contends that she was discriminated against when on
April 2001, her training request was denied. The agency asserts that
complainant requested training in duties such as EKG's and IV's, and that
management did not need complainant to perform those duties. The agency
stated that complainant's primary duties involved obtaining vital signs,
health care screening and immunizations. The agency further alleged
that EKG and IV duties are not critical elements of complainant's LPN
position; however, management agreed to allow complainant to take the
training in the future.
Claim (3)
Complainant stated that in April 2001, she was placed in a hallway where
no one else was located. The agency alleged that complainant was placed
there because she performed both nursing and administrative functions
and because she needed access to a printer. The agency stated that
complainant is not completely isolated from others and that a social
worker, a clerk, and staff from dermatology, ophthalmology, cardiology,
and rheumatology use the space as well on certain days.
Claims (4) & (6)
Complainant stated that there were general comments about the times when
she would call off due to illness. Complainant stated it was reported
to her by others that staff would say things like, �she's off again,�
�how many days this week...� The agency found that S1 testified that
he never made negative statements about complainant, he merely informed
other managers of complainant's absence when she called �in� sick.
Specifically, management testified that when staff calls off for the
day, they will notify affected staff members to let them know that the
person will not be in. The agency found that complainant had no more
of a problem with medical documentation due to being absent than any
other employee. The agency also found that the staff gossiped about
everyone who took off work because they were required to absorb the work
someone is absent.
Claim (5)
Complainant contends that in June 2001, she was discriminated against
when she was allegedly told to sit in her office and hang pictures for
two and a half weeks while her supervisor was on vacation. The agency
found that S1 was away from the clinic for two weeks in June 2001 due
to surgery. The agency found that S1 testified that before he left,
he told complainant to move her belongings into the file room area
and make it comfortable. The agency further found that in June 2001,
complainant was supposed to complete training and competency assessments,
and that she was instructed to read policies and take tests.
Claim (7)
Complainant asserts that in March 2002, physicians and nurse practitioners
allegedly did not relate to her as they did with each other. The agency
stated that complainant was gone for several months and did not develop
relationships with her coworkers. The agency found that complainant acts
in a �standoffish manner.� However, the agency found that management
observed complainant and her peers interact as professionals, and they
never received complaints about complainant's behavior.
Claim (8)
Complainant contends that she was discriminated against on April 17,
2002, when her supervisor allegedly instructed her to report to duty
despite a medical restriction which prohibited her from wearing a bra.
The agency found that complainant presented a doctor's note which
indicated that she could not wear a bra, and that management informed
complainant that wearing a bra was not covered under the dress code
policy and the fact that she was prohibited from wearing one was not
relevant to her ability to work. The agency alleged that complainant's
physician prohibited her form wearing a bra and limited the use of her
arm but did not prohibit her from work. The agency further alleged that
management informed complainant to return to work and offered a number of
recommendations such as wraps and binders to protect her shoulder region
and to take her away from direct patient care; however, complainant was
dissatisfied with the suggestions and wanted to stay at home.
Claim (9)
Finally, complainant alleged that she was subjected to disparate treatment
on February 22, 2002, when she was scheduled to take a fitness for duty
examination and discovered when she reported for the examination that it
was a mental health evaluation. The agency alleged that complainant
was not exhibiting performance problems, but management inquired
about the possibility of a fitness for duty examination because of
her self-reported symptoms and her request for advanced sick leave.
The agency asserts that S1 requested a fitness for duty examination
based on the extended time complainant was requesting off from work,
her work-related injury and complainant's letter that denoting extreme
depression and inability to concentrate.
Complainant makes no new contentions on appeal. The agency request that
we affirm its FAD.
Assuming arguendo, that complainant established a prima facie case of
discrimination based on her race, and reprisal the Commission finds that
the agency has articulated a legitimate, nondiscriminatory reason for
all its actions. The burden returns to complainant to establish, by a
preponderance of the evidence, that the agency's explanation was a pretext
for discrimination. Upon review, the Commission finds that complainant
has failed to meet that burden. In reaching this conclusion, we are
not persuaded by the evidence of record that management's explanations
are unworthy of belief or that they were motivated by discriminatory or
retaliatory animus.
Finally, under the standards set forth in Harris v. Forklift Systems,
Inc., complainant's claim of harassment must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6 (March 8, 1994).
A prima facie case of harassment is precluded based on our findings
that complainant failed to establish that any of the actions taken
by the agency were motivated by her race or by reprisal. See Oakley
v. United States Postal Service, EEOC Appeal No. 01982923. Therefore,
after a careful review of the record, and arguments and evidence not
specifically addressed in this decision, we affirm the FAD.
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
July 20, 2004
__________________
Date
1 The record shows that complainant received the Final Agency Decision
on July 25, 2003 and that the Commission received complainant's appeal
on August 1, 2003. However, due to administrative error, the appeal
was incorrectly docketed as received on February 23, 2004.
2 The record reveals that complainant's previous complaint was based on
race and disability when she received a rescission of her selection for
the Licensed Practical Nurse (LPN) position. In March 2001, the agency's
Office of Employment Discrimination Complaint Adjudication (OEDCA)
found that complainant was discriminated against based on disability,
but not for race discrimination. Complainant was placed in her current
LPN position after the OEDCA decision.