0120073419
09-15-2009
Jeanette B. Jordan, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jeanette B. Jordan,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 0120073419, 0120073480
Hearing No. 280-2005-00274X
Agency Nos. 2003-0331-2005100052, 2003-0331-2010270705
DECISION
On August 1, 2007, complainant filed an appeal from the agency's final
order, dated June 28, 2007, concerning an 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant worked as a GS-12 Rating Veterans
Services Representative, at the agency's Ft. Leonard Wood (FLW) office, in
Missouri.1 Complainant's immediate supervisor, the Supervisory Veterans
Service Representative, worked out of the St. Louis office, several
hundred miles away. Believing that she was subjected to a hostile work
environment, on October 7, 2004, complainant contacted an EEO counselor.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint based on race, sex,
and reprisal for prior EEO activity.
In her formal complaint, complainant claimed that between May 2004
and November 2004 she was subjected to a hostile work environment.
Complainant identified twenty incidents in support of her claim,
regarding communications with her supervisor and her work assignments.
Complainant also claimed that she was discriminated against when on
October 22, 2005, she was issued a proposed 14-day suspension which was
mitigated to a 10-day suspension on January 12, 2005.
In a February 2, 2005, letter, the agency dismissed the hostile
work environment claim (hereinafter "Case A") for failure to state a
claim.2 The suspension claim (hereinafter "Case B") was accepted for
investigation.
During the investigation, complainant sought further counseling regarding
fourteen additional claims of discrimination and harassment. These claims
became the subject of second complaint3 (hereinafter "Case B"). 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). Complainant timely requested
a hearing.
Additionally, complainant asked that the AJ to consider the dismissal
of Case A and consolidate her complaints.4 The AJ agreed to consolidate
the cases. Thereafter, however, the AJ determined sua sponte that the
events presented in Case A, and that portions of Case B5 did not warrant a
hearing.6 Consequently, on September 30, 2006, the AJ issued an "Order
Entering Summary Judgment" finding no discrimination.
In the Summary Judgment decision, the AJ concluded that complainant did
not establish that any of the agency's actions were due to her protected
bases. Instead, the AJ found that the events, take as true and viewed in
the light most favorable to complainant, merely "amounted to supervisory
admonishments and/or statements made about work assignments, instructions,
performance and/or day to day work related activities within the routine
business operations of an agency." Moreover, "to the extent there was
an abusive and intolerable work environment", the AJ reasoned that it
was the result of complainant's failure to take directions.
On the same day that the summary judgment decision was issued, the AJ
also issued a decision, following a hearing, on the remaining matters
in Case B. Specifically, the claims addressed at the hearing were:
(1) On October 22, 2004, complainant was issued a proposed 14-day
suspension, which was mitigated to a 10-day suspension on January 12,
2005;
(2) On April 11, 2005, complainant was charged eight hours Absent Without
Leave (AWOL), and on April 14, 2005, complainant received a letter of
counseling on the AWOL;
(3) On April 19, 2005, complainant was issued a memorandum stating that
she must speak with a member of management when she arrived at and left
work versus sending an e-mail or leaving voice messages;
(4) On April 22, 2005, complainant was required to work fifteen minutes
overtime, which cause her extra day care expenses;
(5) On May 26, 2005, complainant's supervisor failed to acknowledge
complainant's memorandum concerning her workload (ProStar Report);
(6) On November 23, 2005, complainant received verbal counseling,
which was put in writing, that also stated that counseling could lead
to disciplinary action;
(7) On December 23, 2005, complainant was given official counseling for
spending three hours in the union office on December 21, 2005 and;
(8) On January 10, 2006, complainant was denied union time.
The AJ concluded that complainant did not establish that she was subjected
to a hostile work environment based on her protected bases. Instead,
the AJ found, many of the actions resulted from complainant's "persistent
refusal to take direction from her supervisor" and her "failure to follow
instructions when she disagree with them." The record reflected that the
suspension, claim (1), was the result of five incidents. For example,
complainant alleged that she was disciplined for leaving a meeting held
by her supervisor, while another employee left and was not disciplined.
However, the AJ found that the discipline was the result of complainant
telling her supervisor that she was leaving after being directly
instructed that her presence was required. Such conduct that was
not similar to that of the other employee, and the actions warranted
discipline. In another instance, claim (2), the AJ determined that the
record did not support complainant's belief that she was discriminatorily
charged with AWOL when she had properly requested leave. Instead, even
if complainant's version of events is believed, complainant verbally
request sick leave, which was verbally approved. However, complainant
failed to follow up with an e-mail or written request, and there was no
evidence that other Claims Examiners were not required to follow such
leave request procedures. Therefore, the AJ found that the agency did
not discriminate against complainant or create a hostile work environment
based on her race, sex or prior EEO activity.
On June 28, 2007, the agency issued a final order adopting the AJ's
decisions finding that complainant failed to prove that she was subjected
to discrimination as alleged. Complainant filed the instant appeals.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding
no retaliation. Specifically, complainant contends that the agency
failed to present legitimate, non-discriminatory reasons for its actions.
Complainant argues that the purported reasons why she was disciplined and
suspended were "solely based on the manager self-serving statements."
Complainant asserts that the agency failed to prove that their actions
were warranted or fair. Instead, complainant believes that she was
"portrayed as a disrespectful employee because she asserted her rights
to complain about what she viewed as discrimination."
In response to complainant's appeals, the agency requests that the
Commission affirm its final order. The agency asserts that the AJ's
decisions are "thorough and well analyzed."
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision, regarding some of the claims, without a hearing
on this record. The Commission's regulations allow an AJ to issue a
decision without a hearing when he or she finds that there is no genuine
issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of
the Federal Rules of Civil Procedure. The U.S. Supreme Court has held
that summary judgment is appropriate where a court determines that, given
the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court's function is not to weigh the evidence but rather
to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. An issue of fact is "genuine"
if the evidence is such that a reasonable fact finder could find in
favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of
the case.
The Commission agrees that there were no genuine issues of material
fact, with respect to Case A and the portions of Case B that were not
addressed at the hearing. The AJ properly issued a decision without
holding a hearing on those matters.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will 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
[and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17
(1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) she is a member of a
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.
Complainant has not established a nexus between the agency's actions
and her race, sex, or prior EEO activity. Even on appeal, complainant
plainly states that management's testimony was self-serving without
referring to any evidence of pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
decision finding no discrimination.
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
September 15, 2009
__________________
Date
1 In June 2005, complainant was reassigned to the St. Louis Regional
Office.
2 The agency found that the events were insufficient to state a claim
of harassment, and instead analyzed the incidents as separate incidents
of disparate treatment. The agency found that all twenty events
failed to state a claim because they did not relate to a harm or change
in working conditions. The agency also found that three events were
untimely raised with the EEO Counselor.
3 Some were dismissed by the agency on the ground that they were the
same claims that were previously raised (in Case A) and dismissed,
while others were found to be untimely raised, or not raised at all,
with an EEO Counselor.
4 It appears from the instant record that the harassment claim (Case A),
comprised of twenty events, was assigned Case No. 2003-0331-2005100052,
while the suspension matter and additional events occurring
between April 2005 and January 2006 (Case B) was designated as Case
No. 2003-0331-2005102707.
5 Specifically, the claims identified as 4(a) through (g), and (i)
through (k) in complainant's November 8, 2005 "Motion to Consolidate
EEO Complaints".
6 While provided with an opportunity to submit a response to the AJ's
notice of proposed summary judgment, neither party did so.
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0120073480
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073419
0120073480