, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 22, 2000
01992328 (E.E.O.C. May. 22, 2000)

01992328

05-22-2000

, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


, )

Complainant, )

) Appeal No. 01992328

v. ) Agency No. 980234

) 980915

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

_____________ (complainant) timely initiated an appeal from

a final agency decision (FAD) concerning her complaints of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). Complainant alleged:

(1) that she was discriminated against and harassed due to disability

(bipolar disorder)<2> when:

(a) she was reassigned from her position on six west to a position on the

first floor in October 1996 (complainant alleges that this reassignment

was also due to her sex);

she was denied a promotion to Nurse III position in the Spring of 1997;

she was not given assignments commensurate with her experience;<3> and

(2) that she was harassed on an ongoing basis beginning on October 17,

1997 on the bases of reprisal (prior EEO activity) and disability.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a Registered Nurse (RN) in the Ambulatory Care Division at

the agency's Denver, Colorado Medical Center. Believing she was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed a formal complaint on September 12, 1997, in which she raised the

issues described in claim no. 1. She filed a second formal complaint

on February 12, 1998, alleging discrimination as noted in claim no. 2.

At the conclusion of the investigations, 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, the agency issued a final decision addressing both

complaints.

In its FAD, the agency first concluded that complainant failed to

establish a prima facie case of sex discrimination because she failed

to identify any similarly situated male nurses who were treated more

favorably.

The agency then concluded that although complainant failed to

establish that she was substantially limited in a major life activity,

she may have been perceived as disabled or have had a record of being

disabled. The agency found complainant to be qualified because she

was meeting the performance standards of her position. The agency

concluded that complainant established a prima facie case of disability

discrimination, but went on to find that management had articulated

legitimate nondiscriminatory reasons for its actions. Specifically, the

agency noted that legitimate work assignments were given to complainant

based on the staffing and patient needs of the facility. Finding that

complainant failed to show pretext, the agency concluding that she had

not been subjected to disparate treatment.

Turning to the claim of harassment based on reprisal and disability,

the agency concluded that the record supported only a few incidents

where complainant and her supervisors were at odds and that complainant

was not subjected to anything physically threatening or humiliating.

The agency found that while complainant's work environment was stressful,

it did not constitute a hostile environment.

CONTENTIONS ON APPEAL

On appeal, complainant appears to contend, among other things, that the

discrimination and harassment she endured were based on a perceived

disability. She also notes that when placed under a new supervisor,

she suddenly was considered competent once again and began winning

performance and incentive awards, as she did in prior years. The agency

responds that these contentions were either already addressed or do not

require comment and requests that we affirm its FAD.

ANALYSIS AND FINDINGS

Claim no. 1

Disparate Treatment

Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,

U.S. 792 (1973) and Prewitt v. United States Postal Service, 662 F.2d 292,

310 (5th Cir. 1981) the Commission agrees with the agency that complainant

failed to establish by a preponderance of the evidence that she was

subjected to disparate treatment on the bases of sex or disability.

When claiming disability discrimination a complainant must establish

that she is a �qualified individual with disability� within the meaning

of the Rehabilitation Act.<4> For purposes of our analysis herein, we

will assume that complainant met this threshold requirement and proceed

with an analysis of her claims.

With regard to claim no. 1(a), complainant established a prima facie

case of sex and disability discrimination in that she was involuntarily

reassigned from her position on six west and her duties were thereafter

performed by a non-disabled male nurse. However, one of complainant's

supervisors, the Associate Chief of Staff for Ambulatory Care (AC),

articulated a legitimate nondiscriminatory reason for this reassignment,

noting that it was determined that a full-time RN of complainant's

abilities was no longer needed on six west and that the duties could be

handled by a part-time RN.

In attempting to establish pretext, complainant noted that she could

have been assigned to the part-time position. However, complainant's

second supervisor, the Nurse Administrative Assistant in Ambulatory Care

(NAA), testified that the part-time nurse who took over had always been

in that position and that when it was determined that a full-time RN was

not needed, the duties simply reverted to the person already holding

the part-time position. Accordingly, complainant failed to establish

that the reassignment was based on her sex or disability.

We further find that complainant has not established a prima facie

case of disability discrimination with regard to claim no. 1(b) or

(c). Complainant offered no evidence to indicate that her promotion

to Nurse III was purposefully delayed due to a discriminatory animus.

While complainant received her promotion once the Nurse Professional

Standards Board (NSPB) received correct information about her duties and

abilities, there is nothing to suggest that this information was delayed

out of a discriminatory motivation. Moreover, although complainant

named two employees who were treated more favorably than she in terms of

receiving promotions, she acknowledged that these two nurses received

their promotions in 1988. Promotions that occurred almost 10 years

before the incident in question have little relevance and do not raise

an inference of discrimination.

Complainant provided only one specific example of an assignment that

she felt was not commensurate with her experience. Complainant was

assigned to a �salmon sheet� project that involved ensuring that the

agency met the required performance standards in having patients records

in compliance with prevention index health standards. In fulfilling

her duties, complainant was in charge of interviewing patients and

recording information concerning whether they had all the required

shots and exams, among other things. Complainant failed to establish

her assignment to this activity was an adverse action. Her supervisors

testified that agency medical centers around the country were engaged

in similar projects as part of a program called �Healthy People 2000"

and that while it possibly could have been successfully performed by

a less skilled individual, it was an important project that required

at least a Level 2 or 3 Nurse.<5> Moreover, complainant offered no

evidence from which an inference could be made that she was assigned to

this project due to discriminatory animus.

Accordingly, complainant has not met her burden of proving by a

preponderance of the evidence that she was subjected to disparate

treatment based on her sex or disability with regard to claim no. 1.

The agency's finding of no discrimination is therefore AFFIRMED.

Harassment

Complainant may assert a Title VII allegation of harassment if the

discriminatory conduct was so severe or pervasive that it created

a hostile work environment on the basis of her race, color, gender,

religion, national origin or retaliation. See Harris v. Forklift Systems,

Inc., 510 U.S. 17, 21 (1993);, Enforcement Guidance on Harris v. Forklift

Systems, Inc., (Enforcement Guidance) EEOC Notice No. 915.002 at 3,

6 (March 8, 1994); Cobb v. Department of the Treasury, EEOC Request

No. 05970077 (March 13, 1997). While complainant alleged that the above

incidents were motivated by sex-based and/or disability-based harassment,

she failed to provide sufficient evidence to establish that the incidents

were related to her sex or disability. She therefore failed to establish

that she was subjected to harassment in regard to claim no. 1.

Claim no. 2

In her second complaint, complainant alleged that she was subjected to

harassment on the bases of reprisal (prior EEO activity) and disability.

Complainant described the following incidents in support of this claim:

(1) she was spoken to in a harsh, discriminatory way by the Ambulatory

Care Nurse Manager (NM) on October 17, 1997; (2) her name was thereafter

scratched off the assignment sheet that was posted publicly; (3) she

was verbally counseled by AC on October 20, 1997; (4) she was made to

submit letters from her doctor containing personal information when

she indicated that she could not be made to rotate shifts or work any

shift other than a straight Monday through Friday daytime shift; (5)

she was assigned to do a project that raised privacy issues and was not

supported in her attempts to address those issues; (6) rumors were spread

that she was schizophrenic; and (7) her supervisors told people who did

not need to know that she suffered from a psychiatric impairment.<6>

Before determining if the incidents described by complainant amount

to severe or pervasive conduct, we must review the record in order to

determine whether the conduct took place as described by complainant.

There is no competent evidence that incidents (6) or (7) occurred at all.

No witnesses testified to being aware of rumors that complainant was

schizophrenic. AC indicated that complainant told him she had heard

such rumors and that he responded that if she provided him with names,

he would counsel anyone engaging in this behavior. Complainant provided

no names. While complainant argued that people were aware that she had a

psychiatric impairment due to the actions of her supervisors, witnesses

testified that complainant herself made it known throughout the agency

that she was filing a discrimination complaint by passing out written

notes soliciting information. Complainant did not establish that her

supervisors told any unnecessary personnel about her condition.

Next, while the record establishes the incidents (4) and (5) occurred,

there is no evidence that they resulted from discriminatory animus

towards complainant's protected bases.

In regard to incident (4), complainant told her supervisors that,

due to her health, she could only work a straight Monday through

Friday day shift. Complainant was then asked to provide medical

information establishing that she was in need of this accommodation.

While complainant argued that she had not been required to rotate shifts

in 10 years and that information requested was extremely personal, the

record establishes that the agency only requested the information normally

requested from those indicating a need for an accommodation. Moreover,

complainant was permitted to first submit the requested information to

the agency's Employee Health Physician who, upon complainant's request,

deleted one sentence that was not necessary to support her accommodation

request. Finally, the record establishes that the agency agreed to keep

complainant on a straight Monday through Friday daytime shift, subject

to emergencies. There is no evidence to suggest that the agency's

behavior in this regard was anything but proper.

Incident (5) involved the �salmon sheet� project previously discussed.

Complainant was assigned to this project and expressed a concern that

personal information was being requested from patients in front of

other people. While there appears to have been a dispute at some point

over how much privacy patients should be given when answering questions,

it was determined that it was within complainant's power to ensure that

sufficient privacy was given. Complainant offered no evidence that

this assignment or the related privacy issue discussion had anything to

do with her prior EEO activity or disability.

After a careful review of the record, we find that the remaining incidents

were not so severe or pervasive as to create a hostile work environment.

In so finding, we note that incidents (1), (2) and (3) are part of

the same occurrence. Specifically, the record supports complainant's

allegation that NC spoke to her in an inappropriate manner in front of

another doctor (DS) and a patient; that she approached AC about this

incident and was told that she needed to stop arguing with NC, but

that in the future she would receive her assignments from AC and NAA;

and that she thereafter told NC that she would no longer be receiving

assignments from him, leading him to cross out her name on a posted

assignment sheet. These incidents happened within a 5 day period.

The October 20, 1997 verbal counseling wherein AC told her to listen to

NC, also included discussion of a number of other minor issues, such as

what complainant's duties on various days were and the need to comply

with the charge nurse's instructions.

While complainant was made to deal with several unpleasant happenings in

the span of a few days, she was not subjected to severe or pervasive

conduct of a discriminatory nature. It is well-settled that unless

the conduct is very severe, a single incident or a group of isolated

incidents will not be regarded as creating a discriminatory work

environment. See Walker v. Ford Motor Company, 684 F.2d 1355, 1358-9

(11th Cir. 1982); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th

Cir. 1981). Moreover, after DS indicated that NC acted unprofessionally,

NC was counseled and made to apologize to complainant.<7> A reasonable

person would not find that this situation created a hostile or abusive

environment.

It appears that complainant also intended to allege disparate treatment

based on her prior EEO activity and disability in regard to the verbal

counseling she received on October 20, 1997. Complainant established

a prima facie case of reprisal discrimination on this issue. Her first

formal complaint was filed in September 1997 and claimed discrimination

at the hands of the very officials who counseled complainant on October

20, 1997. These officials were aware of her prior activity. Complainant

did not establish a prima facie case of disability discrimination in

that she neither named similarly situated employees who were treated

more favorably, nor produced other evidence raising an inference of

disability discrimination.

The agency articulated legitimate nondiscriminatory reasons for the

October 20, 1997 counseling. AC testified that while none of the

issues discussed on October 20, 1997 were major standing alone, they did

result in problems when viewed as a whole. AC testified, for example,

that complainant had a habit of arguing when she was given assignments,

as she did on October 17, 1997 with NC. AC also noted that complainant

often sent long e-mail messages to numerous employees concerning issues

she had with her supervisors. AC indicated that he felt these were

issues complainant should bring up in private with her supervisors and

that he held the October 20, 1997 meeting to explain this to complainant.

AC also testified that he did not intend the counseling session to be

official, but that complainant requested that it be put in writing.

Complainant failed to establish that AC's explanations were a pretext for

reprisal discrimination. While it was later determined that NC acted

inappropriately on October 17, 1997 and received counseling himself,

this does not establish that AC's decision to counsel complainant was

based on reprisal, rather than his concern that she perform her job to

the best of her abilities.

Accordingly, we find that complainant failed to meet her burden of

proving by a preponderance of the evidence that she was subjected to

discrimination as alleged in claim no. 2. The agency's finding of no

discrimination is therefore AFFIRMED.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal and arguments and evidence not specifically

addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 22, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

1 On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 While certain documents indicate that complainant also raised race

and age as bases for her complaint, a review of her affidavit indicates

that she intended to claim disability discrimination for the most

part, and sex discrimination in regard to one assignment situation.

She also indicated that she was not claiming a failure to accommodate.

Although the FAD included an analysis of race and age discrimination,

as well as reasonable accommodation, this decision will not do so,

given complainant's clear statement that she did not intend to allege

race or age discrimination, or failure to accommodate.

3 Although this is a more detailed description of claim no. 1 than

that given in the FAD, a review of the record reveals that complainant

discussed these incidents with her EEO Counselor and that they were

the basis of her first complaint. July 16, 1997 is given as the date

of occurrence in the formal complaint because complainant met with her

supervisors on this date about her failed attempts to receive a promotion

and thereafter filed an informal complaint.

4 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website at www.eeoc.gov.

5 At this point, complainant had received her promotion to �Nurse III�,

which apparently is another term for a Level 3 Nurse.

6 The record does not contain a concise list or explanation of the

allegedly harassing incidents. After a thorough review of the file,

we believe that this list accurately describes complainant's claim.

7 Complainant also alleged that AC attempted to dissuade DS from being

a witness on her behalf. When approached by the investigator, however,

DS stated that this was not the case.