01A24637
06-12-2003
Jacqueha Chaney v. Department of the Army
01A24637
June 12, 2003
.
Jacqueha J. Chaney,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A24637
Agency No. BKEK0002A0010
Hearing No. 310-A1-5108X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, a Community Nurse at the agency's
Reynolds Army Hospital, Fort Sill, Oklahoma, filed a formal EEO complaint
on March 24, 2000, alleging that the agency discriminated against her:
(1) on the bases of race (Caucasian), sex (female) and age
(D.O.B. 9/14/49) when she was informed that her clinical privileges
were rescinded;
on the bases of race, sex, age and reprisal for prior EEO activity when
she was subjected to unlawful harassment; and,
on the basis of reprisal for prior EEO activity concerning her
performance evaluation, working conditions, job instruction and the
failure of the agency to upgrade her position description and/or
grade level.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination.
Concerning complainant's allegation that the Chief Nurse
(African-American, D.O.B. 10/26/50), who supervised the Community
Health Nursing (CHN) Department where complainant worked, removed
her clinical privileges, the AJ found that the Chief Nurse overreacted
in threatening the job of complainant but was not motivated by race,
sex or age. Rather, he found her actions were based upon a legitimate
concern over the qualifications of the complainant and her co-worker
(African-American, D.O.B. 1/1/44, with prior EEO activity). He found that
the credentials issue was examined by the hospital's Credentials Committee
as well as complainant's supervisors and finally was decided by the
hospital Commander. The AJ found that complainant lacked the education
or training required by law to have prescriptive refill authority and
there was no evidence of race, sex or age discrimination by the agency.
The AJ found that there was very little in the record that relates to
race, sex, age or reprisal. He noted that complainant's supervisors
were all female and the individuals that she claimed had harassed her
were female. He concluded that the claim of harassment or hostile
work environment based on sex was not proven by a preponderance of
the evidence.
With respect to complainant's allegation concerning her performance
appraisal, the AJ found that complainant had presented no evidence that
her supervisor was motivated by a desire to retaliate against her.
With respect to her allegation regarding her not being given proper
instructions, the AJ found that although the agency may have been
negligent in providing proper instructions on medication refills,
ordering of lab reports and x-rays, it did not act intentionally in
retaliation for complainant's previous EEO activity.
Concerning complainant's allegation that the agency failed to upgrade
her, the AJ found that complainant did revise her job description with
the understanding that a grade increase might result but did not occur.
He noted that she had not proved that she had an increase of duties,
that she had properly requested a grade increase or why she would have
a legitimate expectation that she should have her grade increased.
He concluded that there was no evidence presented that she was entitled
to a grade increase and that she had not suffered an adverse action.
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.
A claim of disparate treatment based on race, sex or age should be
examined under the three-part analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to
prevail, she must first 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. 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. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has articulated such a reason,
the question becomes whether the proffered explanation was the true
reason for the agency's action, or merely a pretext for discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although
the burden of production may shift, the burden of persuasion, by a
preponderance of the evidence, remains at all times on complainant.
Burdine, 450 U.S. at 256.
Assuming, arguendo, that complainant established a prima facie case of
race, sex and age discrimination, the agency has articulated legitimate,
nondiscriminatory reasons for rescinding some of the complainant's
clinical privileges. The Chief Nurse stated that she determined that
complainant and her co-worker did not meet the agency's criteria
for writing and renewing prescriptions which required graduation
from a baccalaureate or a higher degree nursing program. The record
revealed that neither complainant nor her African-American co-worker
graduated from a baccalaureate or a higher degree nursing program.
She stated that she recommended the rescission of the complainant's and
the co-workers privileges to the hospital's Credentials Committee and
the Commander of the hospital. She stated that the Commander approved
the Credentials Committee's decision to rescind some of complainant's
privileges. Complainant cited a male co-worker as being similarly
situated to her and not having his privileges rescinded. However,
the record reveals that at the time her privileges were revoked,
the male co-worker was not working in the CHN Department. Finally,
we find that complainant failed to show that the agency's legitimate,
nondiscriminatory reasons were a pretext for discrimination.
Complainant is raising claims of sex-based as well as race and
age-based harassment. Title VII provides that "it shall be an unlawful
employment practice for an employer ... to discriminate against an
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's ... sex ..." 42
U.S.C. 2000e-2(a)(1). If a male employee is subjected to unwelcome
sexual conduct or comments by another male employee, such "same sex"
conduct or comments can, in certain circumstances, become harassment
"because of sex" and hence violate Title VII. See, e.g., Karlovich
v. Department of Transportation, EEOC Appeal No. 01974930 (Nov. 1, 1999)
(citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)).
However, in this "same sex," as well as in the race and age context:
the anti-discrimination statutes are not a "general civility code."
Thus, federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not "extremely serious." Rather, the
conduct must be "so objectively offensive as to alter the 'conditions'
of the victim's employment." The conditions of employment are altered
only if the harassment culminated in a tangible employment action or
was sufficiently severe or pervasive to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web
version) ("Vicarious Liability Enforcement Guidance"), at 4 [internal
notes and citations omitted].
Complainant has asserted that the agency created a "hostile work
environment." Here, complainant has made no showing that she was
harassed because of her sex, race or age. In cases such as these,
where the credibility of the relative parties is critical, we must rely
heavily upon the factual findings of the AJ. See EEO MD-110, at 9-16
Here, the AJ found that there was no evidence of any sex, race or
age harassment. After our own independent review of the record,
we can conclude that a reasonable fact finder would have reached the
same conclusion. We are bound to uphold the AJ's factual findings as to
what really transpired in this case as substantial evidence supporting
the finding of the AJ. (i.e., that there was no evidence of sex, age or
race harassment). Consequently, and after considering the law governing
this case, we are also bound to uphold the AJ's legal determination that
no illegal sex, race or age-based harassment, in the form of a hostile
work environment, was committed here.
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. Social Security 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. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Concerning her performance evaluation, the record reveals that in
November 2000, complainant received an award and the highest performance
rating possible. Complainant has not shown how she suffered an adverse
action from her performance evaluation or that she was retaliated against
for her previous EEO activity. Similarly, with respect to her working
conditions and job instructions, we agree with the AJ's finding that
the agency did not intentionally discriminate against complainant.
We agree with the AJ's finding that there was no evidence presented
that complainant was entitled to a grade increase and that she had not
suffered an adverse action.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's race, sex or age.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 12, 2003
__________________
Date