0120162380
05-30-2018
Harmony E.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harmony E.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162380
Hearing No. 570-2015-00724X
Agency No. 200406882014103568
DECISION
On July 13, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 13, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Support Technician, GS-5, at the Agency's Medical Center facility in Washington DC.
On March 21, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (Multiple Sclerosis), 2 and reprisal for prior protected EEO activity when:
1. From February 5, 2104, Complainant was subjected to harassment; and
2. On June 10, 2014, Complainant was terminated during her probationary period.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing and the AJ held a hearing on June 1, 2016, and issued a decision on June 2, 2016. Specifically, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for terminating Complainant's employment when Complainant's second-level supervisor testified that Complainant failed to perform her duties. The AJ further found that the actions complained of were insufficiently severe to constitute harassment.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Termination.
With regard to claim 2, Complainant's termination during her probationary period, we note that where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination. We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action in the form of the June 10, 2014 Removal Notice which stated that Complainant was being removed for "unsatisfactory conduct."
In addition, Complainant's second-level supervisor ("S2") (male) testified that:
Our Medical Support Assistants are here to support the clinical staff in managing the administrative aspects of the unit. They are here on the inpatient unit to make sure patient call bells get answered, to make sure the - if they answer it, that they inform the nurse that Mr. or Mrs. whoever the patient's name is need their assistance. They're expected to answer the telephone. They're expected to be able to discharge, admit and transfer a patient. They are expected to page medical providers as requested. [Complainant] fell short of that. I mean when the nurse asked her to page a physician and she refused and saying to tell the charge nurse to do that and to iterate 'why I should walk down the hall to tell you if the doctor's on the phone when you're standing by the phone and you can page them yourselves?' that's just totally inappropriate. . . . Customer service is one of the - is the number one, outside of access, thing that we need to provide for our vets here. . . . So answer the call buttons on time. You know, the whole, you know, assist the nursing staff with things, put labels on charts. But her termination was based strictly on performance
The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's reasons were not its true reasons, but were pretexts for discrimination. See Hicks; McDonnell Douglas; Burdine. Following a review of the record we find that Complainant has failed to meet this burden. Other than to express her disagreement with her termination, Complainant offered no argument or evidence to suggest that the Agency's articulated reason for its action was a pretext.
Hostile Work Environment
Complainant alleges the following incidents occurred in support of her hostile work environment claim: on February 4, 20142, as Complainant walked past two male nurses sitting at the rear of the nurse station, one male nurse commented "That milk shake, milk shake...can I stick my fry in that milk shake," but that when she reported the incident to S2 and another supervisor ("S1" - female) nothing was done; on February 25 or 26, 2014, a nurse ("N1" - female) who had previously worked in Complainant's unit, came to Complainant's desk and started talking to one of her coworkers ("CW" - female) making gestures, pointing and making faces at Complainant, in an attempt to get her attention; on February 27, 2014, N1 walked behind the desk and started making comments, said Complainant's name, and pushed Complainant's chair; on March 14, 2014, Complainant did not receive a response to her request for a meeting to discuss the harassing behavior and disparaging comments allegedly made toward her by some of the nurses and doctors in the Unit; on March 20, 2014 the Head Nurse ("HN" - female) in 2E, complained to S1 about Complainant sanitizing her work area, taking calls, and about Complainant's priorities; on April 11, 2014, the Nurse Manager ("NM" - sex unknown) questioned Complainant about submitting a slip when Complainant went to the Emergency room the previous day; on April 16, 2014, another nurse ("N2" - male) came over to the desk, reached over and turned the phone around to make a phone call and when Complainant asked him to use the phone at CW's desk, N2 stated that he needed to give a report and did not have time to discuss that and he then became loud and stated that the phone he was trying to use did not belong to her but to the Unit; when Complainant complained to S1 an S2 she was moved to work in the Neurology ward.
On April 18, and 22, and June 4-5, 2014, Complainant reported to S1and S2 that she was having "issues" working with N2, and that she had communication barriers with another male nurse and male patients, but management failed to take corrective action; on May 5, 2014, while working in Neurology, another nurse ("N3" - male), started pointing his finger and yelling at Complainant about her not knowing how things had been done by other secretaries and that they did not want her there, and when Complainant reported the incident to the Charge Nurse she refused to give Complainant N3's name, saying she did not want any problems; later, a fourth nurse ("N4" - female) came to Complainant's desk and started questioning her and asking if she was full-time, and asking her how long she had been employed there; Complainant then contacted S1 and S2 via email that night and explained to them what happened, and followed up verbally with S2 the next day, but he did not tell her what action he would take. Complainant told him she did not think she could work around males.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
With regard to the "milk shake comment," we find that NM testified that she spoke to the two male nurses identified by Complainant and they expressed shock at Complainant's allegation and denied making any inappropriate comments. There was no other evidence that the incident occurred as alleged by Complainant, so there was nothing more to be done by management. With regard to the remainder of the incidents, we find that Complainant has not shown that the actions complained of either involved or were based on her protected bases. Furthermore, we find that such actions were insufficiently severe and/or pervasive to alter the conditions of Complainant's employment and create a hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing that discrimination occurred, and we AFFIRM the final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 30, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 For purposes of this decision the Commission assumes without finding that Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
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