0120092547
09-30-2009
Judy M. Leonard, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Judy M. Leonard,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092547
Hearing No. 510200800253X
Agency No. 2001-0573-2007-103840
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 14, 2009 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant, a Supply Technician/Item Manager, alleged that the agency
subjected her to hostile workplace discrimination based on race (White),
sex (female), age (47), and reprisal for prior protected EEO activity
under Title VII when: 1) On or about December 24, 2006, and as recently
as September 17, 2007, the agency expected her to perform computer duties,
deliveries, reconciliations, order supplies for the entire medical center,
pull and push pallets weighing 775 pounds and lift heavy objects; 2)
On or about December 24, 2006, and as recently as September 17, 2007,
the Responsible Management Official (RMO) called her to his office
every Thursday and continuously hounded complainant about her work; 3)
On or about December 24, 2006, and as recently as September 17, 2007,
the RMO spoke "inappropriately" to her after she inquired about becoming
Employee of the Month and about obtaining a quality step increase; 4)
On March 29, 2007, and again in June 2007, the RMO informed her that
she should not expect any rating higher than minimally satisfactory on
her performance evaluation; 5) On or about July 26, 2007 and continuing,
the agency instructed her to walk her different areas of responsibility
and scan documents as she was no longer permitted to scan documents at
her desk; 6) On or about July 27, 2007, a co-worker informed her that
the RMO had instructed him not to assist complainant; 7) On or about
August 10, 2007, another RMO instructed an employee not to "been seen
talking" to complainant because complainant filed EEO complaints; 8)
On or about August 20, 2007, the RMO, in her presence, confronted five
of her co-workers regarding complainant's allegation that this RMO had
instructed employees not to assist complainant; 9) On or about August 24,
2007, she learned that three pallets of materials had not been delivered
while she was out on sick leave; 10) On or about August 24, 2007, the
RMO threatened to charge her with Absence Without Official Leave ("AWOL")
when she had failed to call her supervisor to advise him that she was ill
and would not be reporting to work; 11) On or about December 18, 2007,
a Human Resources employee refused to inform her who the recommending
panel and selecting officials were for the position of Systems and
Procedures Analyst, vacancy announcement 09-813-MM.
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 requested
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On January 7, 2009, the Administrative Judge (AJ) issued a summary
decision finding no discrimination. In reaching this decision, the AJ
determined that even if complainant could establish a prima facie case,
the agency had articulated legitimate, nondiscriminatory reasons for
its actions. The AJ stated that while complainant repeatedly argued
that she was overburdened with a plethora of physically-challenging
duties, all item managers had been held to this same standard. The AJ
further stated that contrary to the instructions of her RMO, complainant
carried out her various duties in such a way that allowed her physically
demanding work to pile up, thereby creating more stress for complainant.
The RMO, who had been accused of urging other workers not to assist
complainant, asserted that he would only instruct these workers to take
care of their own priorities first before assisting others. And while
the AJ noted that an RMO may have shown favoritism to a small, diverse
group of subordinates, she found no evidence of discriminatory animus.
The evidence established that complainant's refusal to follow her RMO's
guidance eliminated her chance to get "the service up to speed" and to
ultimately be eligible for any kind of performance award. Concerning
complainant's claims with respect to the agency's personnel office, the AJ
stated that "safeguarding personnel records" is a valid agency concern,
and complainant was ultimately made aware of the selectee for a position
in which she had applied. In conclusion, the AJ found that the events
of which complainant complains, either individually or collectively
fail to rise to the level of unlawful harassment protected by Title
VII. Most importantly, there is no evidence that any of the actions
or decisions of agency management were motivated by unlawful reasons.
Complainant failed to establish that any of management's reasons for its
actions were pretextual or unworthy of belief. Complainant failed to
establish a claim of discrimination under either the theory of disparate
treatment or unlawful harassment.
On appeal, complainant asserts, inter alia, that her co-workers were
afraid to corroborate her version of events. She further asserts that
the AJ had "no clue" of what she endured on a daily basis at the agency.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) she belongs to 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 her statutorily protected class; (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;
and (5) there is a basis for imputing liability. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, complainant asserted that based on all of her statutorily
protected classes, management continuously subjected her to a hostile
work environment. However, we find that complainant has not shown
that she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving her protected classes, or the harassment
complained of was based on her statutorily protected classes. Further,
complainant has not shown that the purported harassment had the purpose
or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment.
While complainant has cited various incidents where agency management
has either inappropriately yelled or took various actions that were
either adverse or disruptive to her, we find that complainant fails to
show that these incidents were as a result of unlawful discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 30, 2009
__________________
Date
2
0120092547
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092547