0120122925
10-29-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122925
Hearing No. 560-2010-00308X
Agency No. 2003-0543-2010101094
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal1 from the Agency's June 12, 2012 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as a GS-8
CT Technician at the Agency's VA Medical Center, Clinical Support Service, Imaging Department, in Columbia, Missouri. Complainant's First Level Supervisor was the Department Supervisor (S1 - male, 45). Complainant's Second Level Supervisor was the Service Director (S2 - male, 62).
On February 4, 2010, Complainant filed an EEO complaint alleging that the Agency subjected her to hostile work environment harassment on the bases of sex (female), age (51), and reprisal for prior protected EEO activity (December 2009 EEO Counselor contact). Complainant alleged the following incidents of harassment:2
1. In August 2006, S1 raised his voice at her when she made a suggestion during a staff meeting.
2. In June 2007, S1 accused her of not answering the call back pager, even though she was not the person on call that day.3
3. In July 2007, after she told S1 that another technician would probably need assistance while she was performing other duties, S1 "bit her head off" and told her that he did not require her help to handle the workforce.
4. In August 2007, S1 questioned her about her call back log entries and tried to prove that she had falsified her call back times in order to receive more pay.
5. In March 2008, after she forgot to remove her Bluetooth headset before going to work, S1 emailed the department stating that the use of Bluetooth devices in patient care areas was unauthorized. In 2009, after she wore a Bluetooth headset when setting up the exam room before the start of her shift, S1 asked her in a "hateful" tone to remove it. Subsequently, S1 emailed the department stating that the wearing or use of Bluetooth devices in patient care areas was unauthorized. She had not yet opened the email when S1 hand-delivered a printed copy of it to her.
6. In June 2008, after she spoke to a radiologist about her concerns regarding the scan schedule, S1 criticized her for not following the chain of command. S1 subsequently documented the incident in a memorandum for the record.
7. In June 2008, after she informed S1 that a janitor had walked in on an unclothed patient during a scan, S1 spoke to the janitor about the incident and thus created hostile feelings between her and the janitor. After S1 emailed the department stating that there would be a "do not disturb" sign for the room when it was in use, S1 stated that she was "always disturbed," which she took to mean he was making fun of her.
8. In September 2008, after she wore open-toed shoes and a cap-sleeved blouse, S1 accused her of dressing inappropriately and of violating the dress code.
9. In July 2009, S1 accused her of starting a petition to rehire a former employee, even though she only signed the petition and did not initiate it or circulate it for signature.
10. In August or September 2009, S1 accused her of violating protected health information by taking home patient data, even though she did not. In November 2009, S1 issued her a proposed admonishment. In December 2009, S2 sustained the admonishment.4
11. In October 2009, as part of her performance evaluation, S1 provided her with an "action plan for competencies." The action plan stated that she was not proficient in fluoroscopy, specifically with c-arms in pain management and the operating room, and that she would be assigned at least one week per month to general radiology to gain experience.
12. In November 2009, S1 went "sneaking" around corners and doorways to observe her while she worked. When she was away from her work area, S1 looked for her and asked other technicians where she was and how long she had been gone.
13. In December 2009, S1 accused her of hanging up on an employee from another facility during a phone conversation, even though she did not. S1 emailed her reminding her of proper phone etiquette.
14. In January 2010, despite being asked by the Clinical Instructor to take the new students to retrieve their hangtags and parking stickers in the Clinical Instructor's absence, S1 did not allow her to perform those duties and told her that he would take care of the students.
15. In January 2010, S1 scolded her when, during her lunch break, she visited a technician in another part of the department to ask what time his interview was with an independent consultant who was coming in to evaluate the department. S1 stated that he was the supervisor and would take care of such matters.
16. In January 2010, S1 asked her for a list of x-rays that she had performed. She believed that S1 made the request to scrutinize and find fault with her work, because he did not require other technicians to provide him with such a list.
17. In January 2010, after she complained to the person scheduling the scans that the schedule was overbooked, S1 told her that it was inappropriate for him to address the scheduling with that person and that she should come to him. When S1 spoke to her, he crossed his arms in front (like he was signaling an incomplete pass in football) and said that he did not need to be any closer to her than this.
18. In January 2010, S2 complained that a scan she had done was of the incorrect region. She had been told by another technician that it was not a big deal if the incorrect region was scanned because S2 could just delete the scans he did not want.
19. In January 2010, S1 accused her of cheating on call backs in an email to the radiologists. In the email, S1 stated that a technician had informed him that a radiologist had asked the technician if "she" (the technician) wanted the radiologist to wait an hour before calling for the next scan. In addition, S1 reminded the radiologists that single requests for multiple scans could not be spaced out to benefit the technicians. Although the email did not reference her by name, she was the technician on-call the weekend immediately prior to the date the email was sent and assumed that the email was referencing her. She believed that S1 lied about her in an effort to turn the radiologists against her.
20. In January 2010, S1 accused her of not cleaning the scanning area. She had worked with another technician the day before, but the other technician was performing the scanning duties and the person who did the scanning was usually responsible for cleaning the scanning area.
After a hearing on December 12-13, 2011 and January 5, 2012, an EEOC Administrative Judge (AJ) issued a May 1, 2012 decision concluding that Complainant failed to prove that the Agency subjected her to harassment as alleged. For each incident, the AJ summarized the testimonial evidence from Complainant, S1, S2, and other employees, as well as the documentary evidence. The AJ found that Complainant did not demonstrate that the incidents complained of were based on her sex, age, or prior EEO activity.
Regarding incidents 1, 11, 12, and 16, the AJ found that S1 did not single out Complainant in the way he spoke to her or scrutinized her work. Citing testimony from other employees, the AJ found that S1 ran the department like an Army drill sergeant, checked up on them and corrected their work, and used a stern tone with them and scolded them. For incident 11, the AJ found that S1 reasonably wanted Complainant to perform more x-ray work and came up with a mechanism for ensuring that she became fluent in plain film x-rays. For incidents 12 and 16, the AJ found that S1 wanted to observe Complainant and review her work because she was under the action plan.
Regarding incidents 3, 6, 14, 15, and 17, the AJ found that S1 reasonably wanted Complainant to focus on her own technician duties rather than get involved in administrative matters that he or others should handle. For incident 6, the AJ found that Complainant failed to comply with S1's instruction that she raise such schedule concerns with him and not with the radiologists. For incident 14, the AJ found that S1 believed Complainant's time would be better spent improving her skills in general radiography rather than performing the student orientation tasks.
Regarding incidents 2, 4, 5, 7, 8, 10, 13, 19, and 20, the AJ found that S1 took reasonable supervisory action by investigating possible policy or procedural violations. For incident 4, the AJ found that S1 questioned Complainant about her entries on the call back log because her log times were too close together, that the timekeeper was the person who brought the issue to S1's attention, that S1 previously questioned other employees about call backs, and that Complainant's former supervisor previously questioned her about call backs. For incident 5, the AJ found that the Bluetooth policy applied to the entire department, that S1 sent the emails to the entire department, that Complainant failed to comply with the Bluetooth policy on more than one occasion, that S1 previously hand-delivered printed copies of emails to other employees to remind them of policies and procedures, and that S1 spoke to other employees about their cell phone usage. For incident 8, the AJ found that S1 reasonably believed that Complainant's attire was inappropriate because her open-toed shoes would expose her toes to the sharp/glass objects she worked with and her cap-sleeved blouse would expose her armpits to patients when she leaned over them to perform the examinations. For incident 10, the AJ found the following: (a) believing that she may have been shorted pay for one of her call backs, Complainant emailed the timekeeper stating, "I had some call backs that I do have copies of at home. I'll bring them in on Monday;" (b) on Monday, Complainant provided the timekeeper with a patient consult containing the patient's full name, social security number, and date of birth; (c) the timekeeper believed that Complainant had the patient consult at her home and brought it in on Monday; (d) the timekeeper reported this suspected privacy violation to S1, who in turn reported this to the privacy officer; and (e) Complainant was issued an admonishment based on this violation. Although Complainant argued that she did not take the patient consult home and that her email referred to the notes she kept at home about her call backs, the AJ found that S1 and S2 reasonably believed that she had violated protected health information. For incident 13, the AJ found that the employee contacted S1 and complained that Complainant hung up the phone on her. For incident 19, the AJ found that the email did not refer to or identify Complainant and that S1 reasonably sent it to the radiologists to follow up on possible call back violations. For incident 20, the AJ found that S1 questioned Complainant after other technicians emailed him stating that the room had not been properly stocked and was unclean.
Regarding incident 18, the AJ found that S2 discovered an error in Complainant's scan and asked her to correct it. In addition, the AJ found that S2's policy was to ask a technician to correct a scan if he discovered a defect with the scan. Moreover, the AJ found that S2 previously questioned other technicians about their scans.
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), Ch. 9, � VI.B (Nov. 9, 1999).
On appeal to the Commission, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See EEO MD-110, Ch. 9, � VI.C. In this case, this means that Complainant has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence"). Here, Complainant did not submit a statement or brief in support of the appeal.
After a careful review of the record, we find that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. As explained above, the AJ found that Complainant failed to present sufficient credible evidence that any of the Agency's actions were based on her sex, age, or prior EEO activity. We discern no basis to disturb the AJ's decision.5 Therefore, after a review of the record in its entirety, it is the decision of the Commission to AFFIRM the Agency's final order because the AJ'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 (November 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
__10/29/14________________
Date
1 Complainant did not submit a statement or brief in support of the appeal.
2 Complainant's accepted harassment claim consisted of 23 incidents. For purposes of clarity, we have renumbered and reframed some of the incidents.
3 Call backs are when technicians are called in to perform a scan outside of their tour of duty. When called in, technicians receive a two-hour block of pay regardless of how long it takes to perform the scan. Technicians are not eligible for another two-hour block of pay unless they leave the hospital grounds and are called to return to perform another scan. Technicians are required to document their arrival and departure from the hospital in a call back log.
4 The Agency later rescinded the admonishment.
5 The AJ's decision discussed incident 9 in the background, but not in the analysis. We find that Complainant did not demonstrate that incident 9 was based on her protected classes.
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0120122925
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122925