0120071280
05-22-2009
Ida Rae Tallbird, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Ida Rae Tallbird,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120071280
Agency No. IHS-036-06
DECISION
On January 4, 2007, complainant filed an appeal from the agency's December
1, 2006 final action 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 following reasons, the Commission AFFIRMS the
agency's final action.
At the time of events giving rise to this complaint, complainant worked
as an Optometry Technician, GS-640-5, at the agency's El Reno Indian
Clinic in El Reno, Oklahoma.
On April 11, 2006, complainant filed a formal EEO complaint wherein
she claimed that on or about January 5, 2006, she was constructively
discharged due to harassment on the bases of race (Native American) and
sex (female). Complainant alleged the following specific incidents of
harassment:
1. During the entire semester of 2005, complainant's Supervisor
required her to sign in and out by printing out the daily sheets from
the computer.
2. Complainant needed approval from both her Supervisor and the
Clinical/Facility Director in order to be granted leave.
3. Complainant's Supervisor and the Clinical/Facility Director would
call complainant at all hours regarding different issues and computer
problems they were having, which would occur during her personal time,
and when she was on annual or sick leave.
4. During a business trip in March 2005, complainant's Supervisor made
derogatory remarks about patients and made racist jokes. Complainant's
Supervisor referred to Native Americans as "spearchuckers" and stated he
was going to start asking people their hobbies as a little observation,
because he knew patients were not rocket scientists.
5. Complainant's Supervisor would come into her office and throw papers
and charts over complainant's desk. Complainant stated she would have
to clean it up and that her Supervisor threw paper at her instead of
handing it to her.
6. There were several occasions throughout the year when complainant's
Supervisor hit her with a door. According to complainant, her Supervisor
was aware she could have been just outside the door, yet he still flung
the door open, laughed and said, "Oh, I didn't know you would there."
7. Complainant's Supervisor abruptly walked toward her in a menacing
manner, as if he were challenging her to a fight. Her Supervisor met
with her in his locked office and required that she say that she had to
listen to him and only him.
8. On October 6, 2005, complainant's Supervisor was upset because the
Clinical/Facility Director asked complainant to work on the speaker
system.
9. Complainant resigned from her position due to all the issues with her
Supervisor as she was frustrated, stressed out and emotionally drained
from having to endure it all.
At the conclusion of the investigation, complainant was provided with a
copy of the report of 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 action pursuant to 29
C.F.R. � 1614.110(b). The agency determined that complainant failed to
prove that she was subjected to discrimination as alleged.
With regard to complainant signing in and out, the Clinical/Facility
Director stated that complainant left early each day and did not take a
lunch break as she was on a modified work schedule. She further stated
that complainant's Supervisor was getting confused as to when complainant
wanted to leave and go to lunch, so he asked her to sign in. According
to the Clinical/Facility Director, complainant was only on the schedule
for a short time as her Supervisor stopped the requirement once the union
told him that it could not continue. As for complainant's leave requests,
the Clinical/Facility Director stated that complainant was not required
to request leave from two supervisors. The Clinical/Facility Director
stated that complainant's Supervisor approved complainant's leave, but he
never had access to the computerized system (ITAS) through which leave
requests were made and approved. The Clinical/Facility Director stated
that complainant requested leave from her Supervisor, he approved it or
denied it, and then the Supervisor sent the Clinical/Facility Director the
information so that she could input it into the computerized system.
As for the phone calls at issue, complainant's Supervisor asserted
that he never asked complainant to give him her cell phone number and
only made limited calls when she was out for extended periods during
the workday. He estimated that there were perhaps twelve calls in the
six-month period, always during the workday. He stated that there
may have been one instance where he called her in the morning while
she was out on leave to address a technical question that needed to be
answered immediately. The Clinical/Facility Director stated that she
always called complainant during the day and during normal work hours,
but never at night except that on one occasion she may have called her
at 6:00 p.m. because they needed something for the following day. She
stated that she possibly called complainant three times in the past year
because complainant was the only individual who knew and had access to
certain things.
With regard to the business trip at issue, complainant's supervisor stated
that he encountered people who made derogatory comments when he told them
that he worked for the agency. According to complainant's Supervisor,
complainant inquired as to what these remarks were and he told her that
these individuals had used terms like drunken Indians and "spearchuckers."
The Supervisor acknowledged that he made comments about patients not
being rocket scientists, but he stated that he made these comments
constantly in his private practice, which did not involve any one of
Native American origin. As for making a mess in complainant's office,
the Supervisor stated that he is messy and a pile of papers followed
him wherever he went. He stated that complainant's desk became messier
on the days she was not there because he would be busier without her
assistance. He claimed that it was not something that he did intentionally
to belittle complainant. With respect to bumping into complainant, the
Supervisor asserted that based on the setup of the office, he is bound to
bump her and other people as well because there is no way to see if anyone
is there. The Supervisor denied that he shouted at complainant on October
7, 2005. According to the Supervisor, complainant insisted on placing a
utility cart in the location where it blocked the door despite the fact
that he had spoken to complainant on numerous occasions about the cart
and the problems presented. The Supervisor maintained that complainant
was defiant in saying that the utility cart would stay there. He stated
that he explained to complainant that she was being insubordinate and
that would have an impact on her evaluation. He stated that by the end
of the conversation he was sure she understood the roles of Supervisor
and assistant.
With regard to the work that complainant was performing for the
Clinical/Facility Director, the Supervisor stated that he believed
complainant preferred her site manager duties to her optometry
responsibilities despite the fact that her primary duty was that of an
Optometry Technician. The supervisor stated that the Clinical/Facility
Director did not request that complainant be away from her work station
and that complainant refused his request for assistance in Optometry. He
stated that this was a conduct issue rather than a performance issue.
With regard to her resignation, the Supervisor stated that complainant
told him when he began working at the clinic that she planned to
attend nursing school in August 2005. The Supervisor denied that any
of his actions were based upon complainant's race or sex. The agency
determined that it articulated legitimate, nondiscriminatory reasons
for the aforementioned actions.
The agency determined the complainant failed to set forth sufficient
evidence of pretext so as to support a claim of a hostile work
environment. The agency reasoned that the difficulties between complainant
and her Supervisor were of an interpersonal nature rather than a
discriminatory basis. The agency concluded that there is no evidence
of a hostile work environment which would have forced complainant
to resign. Therefore, the agency determined that complainant was not
constructively discharged.
On appeal, complainant contends that her Supervisor required her to
sign in on the patient appointment list to prove her early arrival.
Complainant states that she had to leave work early two days a week
to attend a class and that she did not have keys to the facility.
Complainant claims that other similarly situated employees were not
required to sign in under the same conditions. As for her leave requests,
complainant argues that her Supervisor would criticize her for the reason
that she requested leave. In terms of her Supervisor's telephone calls,
complainant suggests that his calls to her concerning the computer systems
after hours or while she was on leave indicate that her computer work was
a primary part of her job. Complainant argues that her Supervisor has
struck her with an office door on purpose on more than one occasion.
According to complainant, the bumps occurred when he was angry.
With regard to the repair of the speaker system, complainant states
that her Supervisor and the Clinical/Facility Director were aware of
the conflicting orders, but allowed her to stay in a confused work
environment.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
To establish a claim of harassment, complainant must show that: (1) she
is a member of the 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.
The harasser's 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). Further, the incidents must have been "sufficiently severe
and pervasive to alter the conditions of complainant's employment and
create an abusive working environment." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,
Inc., 23 U.S. 75 (1998).
The Commission has established three elements which complainant
must prove to substantiate a claim of constructive discharge: (1) a
reasonable person in complainant's position would have found the working
conditions intolerable; (2) conduct that constituted discrimination
against complainant created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. See Walch v. Department of Justice, EEOC Request
No. 05940688 (April 13, 1995).
Upon review of the incidents set forth by complainant, we find that
they generally reflect a personality conflict between complainant and
her Supervisor. However, this personality conflict does not necessarily
translate into animus against complainant due to the alleged bases.
We find that the agency articulated legitimate, nondiscriminatory
reasons for each of the incidents at issue. Complainant has not shown
by a preponderance of the evidence that these reasons were pretextual
or that the incidents occurred due to animus on any protected bases.
Therefore, we find that complainant was not subjected to a discriminatory
hostile work environment and was not constructively discharged.
The agency's final action finding no discrimination is AFFIRMED.
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
May 22, 2009
__________________
Date
2
0120071280
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120071280