0120091612
07-24-2009
Gail L. Stanley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Gail L. Stanley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091612
Agency No. 2004-0394-2008101138
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 21, 2009 final decision concerning her equal employment opportunity (EEO) complaint claiming 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
During the period at issue, complainant was employed as a Veterans Service Representative, GS-13, at the agency's Appeals Management Center in Washington, D.C.
On February 13, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American) and disability (anxiety) when:
1. on June 28, 2007, her supervisor (S1) denied her request to work overtime and accused her of leave abuse;1
2. from June 28, 2007 through December 20, 2007, S1 spoke to her in an unprofessional manner;
3. on December 20, 2007, S1 attempted to further provoke her when entering her work area;
4. on November 29, 2007, the Service Director stated S1 falsely accused complainant of not being professional;
5. November 20, 2007, S1 admonished her regarding her computer password being reset, questioned her early completion of work, and ordered her to turn in her work laptop and printer;
6. on July 16, 2007, S1 intervened and responded to an e-mail addressed only to the Service Director; and
7. on June 28, 2007, S1 denied her request to work overtime.
At the conclusion of the investigation, complainant was provided with a copy of the investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its January 21, 2009 final decision, the agency found no discrimination. The agency determined that complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race and disability discrimination.2 Regarding the harassment claim, the agency found that complainant did not prove she was subjected to harassment sufficiently severe or pervasive so as to render her work environment hostile.
Regarding claim 1, S1 stated that complainant was ineligible for overtime on June 30, 2007 because she had taken unscheduled leave earlier that week. Specifically, S1 stated that complainant "had contacted this office, and she had unscheduled leave that week and we offered her to work straight time for the overtime, and she was upset about it. She didn't want to do that. She wanted to work the overtime, so it wasn't a matter of denial, it was a matter of a choice." S1 further stated that complainant was given a choice to work the day "that she already had during the week, otherwise she wasn't allowed to work and get paid for it. That . . is by policy, that is the policy that is here in VAMC. That is not anything to do with her personally, it is VAMC policy."
Regarding claim 2, S1 stated that she did not speak to complainant in an unprofessional manner, and was unaware of any concerns complainant may have relating to this issue. S1 stated that she recalled one occasion when she walked around to employees' cubicles and asking complainant and others to clean off the tops of their cubicles because the walls were being painted. Specifically, S1 stated "the only thing I can think is that we were having painting done on the fifth floor and we were trying to get everybody to get . . . the tops of their cubicles cleaned off because that's the one request that they had...when I was addressing them, [complainant] did walk away, so I did speak to her and asked her, and she said, 'Okay.' Other than that, I really don't have a whole lot of interaction with her." Furthermore, S1 acknowledged walking around and saying "Good morning" to everyone, and "if they choose not to speak that is entirely up to them."
The Ratings Operational Manager, complainant's other supervisor (S2), stated that she did not witness S1 speaking to complainant in an unprofessional manner. S2 further stated that complainant did not allege that S1 spoke to her in an unprofessional manner but "she did state that she did not feel comfortable with her talking, with [S1] talking to her. At least she didn't state to me unprofessional."
Regarding claim 3, S1 stated she has no recollection in regard to complainant's allegation that on December 20, 2007, she provoked complainant when she entered her work area.
Regarding claim 4, S1 denied accusing complainant of being unprofessional. Specifically, S1 stated "I have never discussed that. I have, I have never said that and, in fact, I think she is a high performer in her position...Do I know that there have been issues? yes, I do, but have I said she's unprofessional personally? . . . that I have stated that, no."
Regarding claim 5, S1 stated that she never admonished complainant for refusing to give out her password. S1 stated that a named IT person (IT) contacted in regard to complainant's lack of cooperation concerning her computer. S1 stated that during the relevant time, complainant was working from home "with a special provision, or a special accommodation for her foot for sometime, and she is the only one nationally." S1 stated that as a result of agency policy changes, complainant was no longer allowed to work at home with a laptop, and she was asked to return her laptop and printer in exchange for a desktop computer. S1 stated that IT needed to gain access to complainant's computer in order to effectuate the change but complainant refused to give it to him unless he obtained permission from her supervisor. S1 stated that she sent an email to complainant asking her when she would be completing her work for the day so IT could change the password to update and configure her computer. Specifically, S1 stated that complainant should be concerned about giving out her password to IT "and she didn't give it out. And we're okay with that, but we still had the issue that had to be resolved with the PC, and the only way that IT could go in to do it is then reset it, but if he reset it, then she would no longer be able to access her PC, so we were trying to get confirmed that she was complete with her work for the day so that he could go ahead and do that." S1 stated that when she contacted complainant, she learned that she had gotten up very early that day and finished her work so IT was able to access her computer.
Regarding claim 6, S1 stated that S2 forwarded complainant's email about overtime work, and she responded to complainant concerning the agency's overtime policy. Specifically, S1 stated "what I remember about the message is that I think [S2] probably forwarded it to me or the director's box, I'm not sure which, and was more or less inquiring based on what [complainant] had submitted to her. I believe that was her inquiry about some agreement that she claims that the two of us had about her not working overtime, which I have never stated one way or the other. I think [S2] was sending that to me to find out what was going on with it. And I'm pretty sure I replied it to [complainant] and explained that to her."
S2 stated that she received complainant's email on her first day at the Rating Board, and if she referred it to S1, it was because S1 was complainant's supervisor and the email referred to a conversation that occurred prior to her appointment. S2 stated "there was no complaining. And I'm trying to look it up now. I think what happened is she requested overtime; and then because she had had unscheduled leave, was told that she couldn't work it...Her e-mail to me states that she and [S1] agreed that she would prefer that I not work overtime. And this is [complainant's] e-mail to me."
Regarding claim 7, S1 stated that on June 28, 2007, complainant's request to work overtime was denied because she had taken unscheduled leave earlier that week. S1 further denied telling complainant that she preferred complainant not to work overtime.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally 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 of 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, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment.
On appeal, complainant not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination. Complainant provides a four-page statement addressing each claim separately. Complainant asserts, for example, that she was bullied and threatened in regard to her request to work overtime; that she was repeatedly harassed and provoked; and that agency actions regarding the password incident constituted, in essence, an admonishment to her. However, our review of the record reflects that there are no agency improprieties in regard to its findings.
Therefore, 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 agency's final decision because the preponderance of the record evidence does not establish that discrimination occurred.
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
July 24, 2009
__________________
Date
1 In its final decision, the agency noted that complainant testified that S1 did not accuse her of leave abuse (Testimony Transcript - page 7). Therefore, the agency only addressed that portion of claim 1 relating to S1's denial of complainant's request to work overtime.
2 The Commission presumes for the purposes of analysis only, and without so finding, that complainant is an individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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