0120122424
10-19-2012
Inez Whiteside, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Inez Whiteside,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122424
Hearing No. 430-2011-00051
Agency No. 200406372010101144
DECISION
Complainant filed an appeal from the Agency's April 11, 2012 Final Order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Worker at the Agency's Ashville Veterans Administration Medical Center facility in Ashville, North Carolina. On February 11, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (61) and in reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when:
A. On November 19, 2009, Complainant was removed from serving as liaison for undergraduate colleges/universities when the intern program was disbanded;
B. On November 16, 2009, Complainant was denied a step increase;
C. On November 17, 2009, Complainant was denied a promotion;
D. Complainant was subjected to a hostile work environment when:
1. On September 13, 2006, S1, Chief of Social Work Service, removed Complainant's collateral duty, part-time Social Worker assignment with the Nursing Home Inspection Team;
2. From March 2005 to July 2009, S1 approved fewer hours of authorized absence and compensation time to Complainant;
3. On November 19, 2009, Complainant was removed from serving as liaison for undergraduate colleges/universities;
4. On November 16, 2009, Complainant was denied a step increase; and
5. On November 17, 2009, Complainant was denied a promotion.
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 EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on December 7, 2011, and issued a decision on March 7, 2012.
In her Decision, the AJ found that Complainant did not show that S1, Complainant's supervisor, directed Complainant to cease functioning as a liaison for interns at the undergraduate level. On the contrary, the AJ noted that Complainant herself stated that she assumed S1 did not wish her to continue to work with colleges because of a conversation that Complainant had with a school representative. (Claim (A) and (D)(3)). The AJ further found no evidence that S1 intended to have another employee take over the intern liaison function.
Regarding claim (C) (and (D)(5)), the AJ found that the evidence showed that Complainant was denied a promotion to the GS-12 level because she did not possess the required license for the GS-12 level. The AJ found that Complainant did not show that the Agency's reason was false or a pretext to mask age or reprisal discrimination. Rather, the AJ found that the certification Complainant possessed did not meet the Agency's requirement for licensure.
With respect to claim (B) (and claim (D)(4)), the AJ found that the Agency stated that Complainant had not done the kind of activity that qualifies an employee for a step increase, as Complainant had requested. Complainant, the AJ noted, had been a guest speaker at a local college, but had not earned a professional certification or authored a paper published in a peer-reviewed journal or any activity that the Agency recognized with a step increase. The AJ noted the evidence did not show that Complainant was denied a step increase because of her age or prior EEO activity.
Regarding claim (D), the AJ considered Complainant's overall claim of harassment, including both the recent events identified in her complaint, together with those incidents that occurred more than 45 days before Complainant's EEO Counselor contact in December 2009. The AJ found that Complainant's duty to the Nursing Home Inspection (NHI) team was not a primary duty for Complainant and that S1 expressed concern that Complainant devoted excessive time to collateral duties. The AJ noted that S1 stated he removed Complainant from the NHI team because she was involved in too many other activities. The AJ found that Complainant did not show that S1's reason was false or unworthy of belief. Additionally, the AJ found Complainant did not present evidence that showed she was approved for fewer hours of compensatory time or authorized absences than her co-workers.
The AJ found that the evidence of age bias included what the AJ found were only stray remarks that did not establish the required nexus between Complainant's age and S1's actions of which she complains in her complaint. On the contrary, the AJ observed that S1 had promoted other employees, close to Complainant's age, and that S1 also refrained from initiating any further action regarding Complainant's licensure deficiency when he had the opportunity to do so.
With respect to Complainant's reprisal claim, the AJ found that Complainant failed to establish a prima facie case of reprisal discrimination regarding claim (C) because the Complainant did not present evidence that the Agency officials responsible for determining Complainant's promotion request were aware of her prior protected activity. The AJ found that Complainant's own statements indicated that her relationship with S1 deteriorated beginning in 2005, and not after she engaged in the EEO process. The AJ found that the Agency's articulated reasons for its actions were not shown by Complainant to be a pretext or that reprisal was the real reason behind its actions.
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. (November 9, 1999).
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). She 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 Constr. 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we find the AJ's Decision is supported by substantial evidence. Specifically, we note the documentary evidence fails to support Complainant's claim that she was not approved for as many hours of authorized absence or compensatory time as were her co-workers. Additionally, we find, as did the AJ, that Complainant failed to show that the certifications or licenses she held were sufficient to meet the Agency's requirements for the GS-12 grade level. We find no evidence to support Complainant's claim that her age or prior protected activity motivated S1 to deny Complainant's request for a step increase. We further concur with the AJ's finding that Complainant failed to show that more likely than not S1 was motivated by Complainant's age or prior protected activity when he expressed concern regarding the devotion of Complainant's time to a myriad of collateral activity. Accordingly, we discern no basis upon which to disturb the AJ's Decision finding no discrimination.
CONCLUSION
We therefore AFFIRM the Agency's Final Order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
October 19, 2012
__________________
Date
2
0120122424
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122424