0120080246
06-11-2010
Elizabeth W. Cruz, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Elizabeth W. Cruz,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080246
Hearing No. 541-2006-00203X
Agency No. ARCARSON05OCT11702
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 18, 2007, 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. For the reasons
which follow, the Commission AFFIRMS the final agency order.
ISSUES PRESENTED
The issues presented are whether the Administrative Judge (AJ)
properly issued a decision without a hearing, and whether complainant
has established that the agency discriminated against her on the bases
of race (Asian Pacific), national origin (Filipino), and sex (female)
and subjected her to a hostile work environment when she was threatened
with disciplinary action through counseling statements for offenses she
did not commit and was referred to as the "Filipino Mafia."
BACKGROUND
The record reveals that complainant worked as a Registered Nurse (RN)
at the Fort Carson Evans Community Hospital, Fort Carson Colorado.
Complainant's supervisor (S1) issued three "general counselings" to
complainant as follows:
1. July 20, 2005: Discussed being professional in both attitude
and performance to patients and coworkers. We must all work as a
team and communicate clearly with each other. I expect you to follow
my directives. Further incidents of misconduct could result in formal
discipline.
2. August 16, 2005: [On] August 11th, there was a two hour delay
preparing a patient for a GI. Reason cited for delay - severe patients
and difficult IV's. Patient complaints were received due to sequence
of events reporting the delay. Challenge (Ms. A.) to ask for help -
"Help is not the last resort." If feeling overwhelmed and falling behind
in schedule call the supervisor.
3. October 11, 2005: Formal Warning - next incident of negative
behavior or offense - [Major J] or the supervisor will file disciplinary
action based on Art. 690-700 Chapter 75.
The July 20, 2005, counseling statement was issued by S1 to complainant
and all of the other nurses under her supervision. Both Complainant and
her twin sister, who is also a RN, were counseled regarding the August 11,
2005 incident, where there was a two-hour delay with patient treatment.
A licensed practical nurse (LPN) was also involved in this incident but
she was not counseled.
Further, the record reveals that Complainant and her sister were referred
to as part of the "Filipino Mafia" on at least two occasions, once by
the Staff Sergeant and another time by the Chief of Anesthesiology.
As a result of these incidents Complainant alleged that she was being
subjected to on-going harassment and a hostile work environment.
As such, she filed the instant complaint. She alleged that based on
her race, national origin, and sex she was subjected to a hostile work
environment when: (a) since October 11, 2005, she has constantly been
threatened with disciplinary actions through counseling statements, often
for offenses she feels she did not commit; (b) on September 26, 2005,
she was accused of abusing leave in spite of having her leave approved1;
(c) since September 2, 2005, she has been subjected to racial slurs such
as being referred to as the "Filipino Mafia;" and (d) based on her sex,
the Staff Sergeant raises his voice and bullies her but does not do the
same to male nurses.
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ granted the agency's
motion for summary judgment and issued a decision without a hearing
finding no discrimination and no harassment.
Specifically, the AJ found that Complainant failed to establish a prima
facie case of race, national origin, or sex discrimination with respect to
issue 1, the issuance of counseling letters, because the evidence shows
that all the nurses were issued the counseling statements. The AJ found
that the agency articulated legitimate nondiscriminatory reasons for its
actions; namely, that the counseling statements were issued to address
particular and necessary work-related issues. The agency explained that
the counseling statements were made without regard to race, national
origin or gender and were not considered disciplinary in nature.
Additionally, the AJ found that Complainant failed to show that she was
subjected to a hostile work environment when she was referred to as part
of the "Filipino Mafia" and when she was yelled at by the Staff Sergeant.
The AJ found that Complainant was referred to as the "Filipino Mafia"
on only two occasions, and that these isolated incidents were not
severe or pervasive enough to establish a hostile work environment.
Further, with respect to the Staff Sergeant raising his voice at her,
the evidence showed that the Staff Sergeant had difficulty dealing
with the nursing staff in general and was rude to everyone. Moreover,
the AJ found that the interactions with the Staff Sergeant of which
Complainant complained, even if taken as true, were insufficient to
constitute an actionable claim of hostile work environment. Accordingly,
the AJ found that Complainant had failed to establish that the agency
unlawfully harassed or discriminated against her based upon her race,
national origin or gender. The agency thereafter issued a final order
fully implementing the AJ's decision.
ANALYSIS and FINDINGS
Standard of Review
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and review the
documents, statements, and testimony of record, including any timely
and relevant submissions of the parties, and issue its decision based
on the Commission's own assessment of the record and its interpretation
of the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive
110, Chapter 9, � VI.A. (November 9, 1999). Initially, we consider
whether the AJ properly issued a decision without a hearing on this
record. The Commission's regulations allow an AJ to issue a decision
without a hearing when s/he finds that there are no genuine issues of
material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned
after the summary judgment procedure in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). The AJ may properly issue a decision without
a hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 0120024206 (July 11, 2003). We find that the AJ's
determination to issue a decision without a hearing (summary judgment)
was appropriate, as there remains no genuine dispute of material fact
nor issue of credibility to resolve at a hearing.
Harassment Claim
It is well-settled that harassment based on an individual's protected
status is unlawful, if it is sufficiently patterned or pervasive; usually,
however, a single incident or a group of isolated incidents will not be
regarded as discriminatory harassment. Frye v. Department of Labor,
EEOC Request No. 05950152 (February 8, 1996); Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); see also
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
We find that Complainant has failed to establish that she was subjected
to a hostile work environment with regard to the issues in this case.
With respect to the August 16th, counseling the agency explained that
this counseling was meant as a teaching tool. Further, the record shows
that the LPN who was not issued counseling was not similarly situated to
Complainant because Complainant was an RN and had the authority to ask for
help. The AJ found that the issuance of three counseling statements was
not severe or pervasive enough to constitute a hostile work environment.
With respect to the term "Filipino Mafia," the Commission agrees that
this term is inappropriate. Nevertheless, the two incidents noted in
the record do not rise to the level necessary to demonstrate an unlawful
hostile work environment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997), citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993) (harassment is actionable if
it is sufficiently severe or pervasive to alter the conditions of
the Complainant's employment). Moreover, Complainant has not shown
that the alleged 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. See Humphrey v. United States Postal Service, EEOC
Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
Further, the Commission finds that even if we assume, arguendo, that
Complainant established a prima facie case of discrimination as to
all bases, the record evidence reveals that the agency has articulated
legitimate, nondiscriminatory reasons for its actions as was discussed
above. We find that, other than Complainant's conclusory statements,
she has not provided evidence which suggests that the agency's
nondiscriminatory reasons are in fact pretext for discrimination.
Therefore, we find the Administrative Judge's issuance of a decision
without a hearing was appropriate; and that a preponderance of the record
evidence does not establish that discrimination occurred.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
June 11, 2010
Date
1 Complainant withdrew this issue. Notwithstanding, the AJ found that
the Sergeant that threatened to dock Complainant for leaving work early
to take care of her ill son was not in her chain of command and had
no authority to dock complainant's pay. Further, the AJ found that
Complainant had proffered no evidence that this event took place as a
result of her race, national origin or sex.
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0120080246
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013