Delia Solisv.Veterans Affairs 01A03353 December 22, 2000 .Delia Solis, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 22, 2000
01a03353 (E.E.O.C. Dec. 22, 2000)

01a03353

12-22-2000

Delia Solis v. Veterans Affairs 01A03353 December 22, 2000 .Delia Solis, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Delia Solis v. Veterans Affairs

01A03353

December 22, 2000

.Delia Solis,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A03353

Agency No. 97-1054

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

concerning his complaint 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 the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. For the reasons that follow,

we AFFIRM the final agency decision.

ISSUE PRESENTED

The issue presented herein is whether complainant has proven, by

preponderant evidence, that she was discriminated against and subjected

to a hostile work environment on the bases of national origin (Hispanic),

sex (female), and age (over 40).

BACKGROUND

Complainant, employed by the agency as a Staff Nurse in the Surgical

Intensive Care Unit at the time of the alleged discriminatory events,

filed a formal complaint dated February 20, 1997, in which she alleged

what has been identified as the issue presented. Specifically, she

alleged that she was discriminated against when she received a letter

of counseling on September 23, 1996. She also alleged that the letter

of counseling was part of an ongoing pattern of harassment. To support

her harassment claim, she stated that her supervisor, the responsible

management official (RMO), touched her on the back while addressing her.

Complainant also alleged that male workers are treated more favorably

than their female counterparts in the granting of leave requests and that

she is assigned to work more 7:30 to 4:00 shifts than other employees.

Finally, she alleged that she was discriminated against on the basis

of age because there are very few nurses on staff over the age of 50.

The complaint was accepted for investigation. At the conclusion of the

investigation, complainant was provided with a copy of the investigative

file and informed of her right to elect either a hearing before an EEOC

administrative judge or an immediate final agency decision without a

hearing. When complainant failed to notify the agency of her election,

the agency issued a final decision. It is from that decision that

complainant appeals.

ANALYSIS AND FINDINGS

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a Title VII case

alleging discrimination is a three-step process. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-803 (1973). See also Loeb v. Textron,

600 F.2d 1003 (1st Cir. 1979) (applying McDonnell Douglas to age cases).

First, complainant must 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. Next, the agency must articulate a legitimate, nondiscriminatory

reason(s) for its actions. Texas Department of Community Affairs

v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful,

then the complainant must prove, by a preponderance of the evidence,

that the legitimate reason(s) proffered by the agency was a pretext

for discrimination. Id. at 256.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether she has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717

(1983). In this case, we find that the agency has stated legitimate,

nondiscriminatory reasons for its actions. Specifically, the agency

stated that complainant was given a letter of counseling because

(1) on July 30, 1996, she failed to cooperate with the Respiratory

Therapist in changing an oxygen delivery system; (2) on August 6, 1996,

she requested that another nurse, who had conducted a narcotic wasting

procedure, to draw up the waste in a syringe; (3) on August 13, 1996,

she knowingly left a patient in his bowel movement; and (4) on August 20,

1996, she failed to assist the Narcotic Pharmacist even though she had

the narcotic keys. The RMO admitted that he touched complainant on the

back once while addressing her. But according to him, the touch was

not offensive and was done to get her attention. The RMO stated that

when she told him not to touch her, he never did so again. The agency

denied treating males more favorably in the granting of leave requests.

The agency also denied assigning complainant more 7:30 to 4:00 shifts

than other employees. In fact, according to the agency, complainant

chose her own hours with the exception of one 8 hour shift per pay period.

The agency provided documents and affidavits from several of complainant's

co-workers which lend credence to its stated reasons.

Because the agency has proffered a legitimate, nondiscriminatory reason

for the alleged discriminatory events, complainant now bears the burden

of establishing that the agency's stated reason is merely a pretext for

discrimination. Shapiro v. Social Security Administration, EEOC Request

No. 05960403 (December 6, 1996). Complainant can do this by showing

that the agency was motivated by a discriminatory reason. Id. (citing

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,

complainant has failed to meet that burden. Complainant presented no

evidence which indicates that the agency's stated reasons are not true.

For that reason, we find that she has failed to prove that she was

subjected to unlawful discrimination.

Harassment/Hostile Work Environment

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

must be determined by looking at all the circumstances, including the

frequency of the discriminatory conduct, its severity, whether it is

physically threatening or humiliating, or a mere offensive utterance, and

whether it unreasonably interferes with an employee's work performance.

Harris v. Forklift Systems, 510 U.S. 17 (1993).

Complainant alleged that she was subjected to a hostile work environment

and harassment. To establish a prima facie case of hostile environment

harassment, a complainant must show the existence of four elements: (1)

she is a member of 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); 29 C.F.R. �1604.11.

In the present case, complainant contended that the letter of counseling,

the supervisor's touch on her shoulder, the favorable treatment that male

co-workers enjoyed over their female counterparts, the requirement that

she work more 7:30 to 4:00 shifts than other employees, and her belief

that there are very few staff nurses over the age of 50 constitute an

on-going pattern of harassment.

After examining information in the file, the Commission is not convinced

that male employees are treated more favorably than their female

counterparts. Nor are we convinced that complainant was forced to work

more 7:30 to 4:00 shifts than other employees. So, on those issues,

complainant failed to establish the existence of the second element.

Regarding the rest of the issues, the Commission is not convinced that

those events took place in an effort to harass complainant because

of her protected status. On those issues, she failed to establish the

existence of the third element. As such, we find that complainant failed

to establish a prima facie case of harassment.

CONCLUSION

Based on the foregoing, after a careful review of the record, including

complainant's contentions on appeal, the agency's response thereto,

and arguments and evidence not specifically addressed in this decision,

we hereby AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 22, 2000

__________________

Date

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 29 C.F.R. Part 1614 in deciding the

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

Commission's website at www.eeoc.gov.