0120081646
09-24-2009
Kathleen Barry-Park, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kathleen Barry-Park,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081646
Hearing No. 530200700191X
Agency No. 200H06462006100860
DECISION
On February 24, 2008, complainant filed an appeal from the agency's
January 22, 2008 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. The Commission accepts the appeal, pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms in part and reverses in part the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a licensed practical nurse (LPN), GS-6, in the primary care service
line at the VA Pittsburgh Healthcare System in Pittsburgh, Pennsylvania.
On May 26, 2006, complainant filed an EEO complaint. The agency
eventually accepted three claims for investigation.1 The first claim
alleged that the agency discriminated against complainant on the basis
of race (Caucasian) when the agency did not provide complainant with the
opportunity to work overtime by staffing the flu clinic on November 15,
2005, November 19, 2005, December 10, 2005, and December 13, 2005.
The second claim accepted for investigation alleged that complainant was
subjected to a hostile work environment on the bases of race (Caucasian)
and in reprisal for prior EEO activity when:
1. in late 2004, complainant's first-line supervisor, the nurse
manager of primary care, yelled at complainant while complainant was
walking down the hall;
2. on October 16, 2005, November 15, 2005, and December 21, 2005,
the nurse manager yelled at complainant;
3. the agency did not provide complainant with the opportunity to
work overtime by staffing the flu clinic on November 15, 2005, November
19, 2005, December 10, 2005, and December 13, 2005;
4. on November 29, 2005, the nurse manager accused complainant of
not completing an assignment and not keeping her work area stockpiled
with supplies;
5. on December 22, 2005, the agency took a refrigerator
out of her office;
6. on January 11, 2006, the agency informed complainant that she
would have to utilize an "open room" on a rotational basis;
7. on February 21, 2006 and February 23, 2006, complainant
was charged for one
hour lunch;
8. from March 13 to 17, 2006, April 13 to 17, 2006, April 24 to 28,
2006, May 15 to 19, 2006, July 2 to 8, 2006, complainant was required
to open the clinic without assistance;
9. on March 21, 2006, complainant was not offered the opportunity
to attend a conference;
10. on March 22, 2006, a coworker received a bonus for the "Managing
Overweight and Obesity in Veterans Everywhere" (MOVE) program and
complainant did not;
11. on April 4, 2006, complainant believed that she was going to be
accused of sabotaging a coworker's computer;
12. on April 28, 2006, the nurse manager pulled complainant's coworker
to "the other side of the hall" from complainant's "side of the hall";
13. on November 8, 2006, the nurse manager verbally counseled
complainant about her sick leave during a meeting about her 2006
performance evaluation.
The third claim accepted for investigation alleged that the agency
discriminated against complainant in reprisal for prior EEO activity
under Title VII when: (1) the agency required complainant to open the
clinic without assistance from March 13 to 17, 2006, April 13 to 17,
2006, April 24 to 28, 2006, May 15 to 19, 2006, and July 2 to 8, 2006;
and (2) in July 2006, the agency failed to adhere to its promise that
complainant could perform "extra duties" for a three-month period
beginning on October 24, 2006.
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. Over the complainant's objections, the AJ assigned
to the case granted the agency's August 20, 2007 motion for a decision
without a hearing and issued a decision without a hearing on January
9, 2008. The agency subsequently issued a final order adopting the
AJ's finding that complainant failed to prove that she was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
Neither party filed a statement on appeal.
ANALYSIS AND FINDINGS
In rendering this appellate decision, the Commission reviews de novo the
AJ's legal and factual conclusions, and the agency's final order adopting
them. 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"). The Commission is free to accept (if accurate)
or reject (if erroneous) the factual conclusions and legal analysis of
the AJ and agency. 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").
The Commission must first determine whether it was appropriate for
the AJ to have issued a decision without a hearing on this record.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a
hearing unless the AJ ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment "where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition." Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to a
motion for a decision without a hearing). We discuss this matter further,
infra.
A. Claim 1: Opportunities to Work Overtime
Complainant alleged that she was discriminated against on the basis of
race (Caucasian) when the agency did not provide complainant with the
opportunity to staff the flu clinic on November 15, 2005, November 19,
2005, December 10, 2005, and December 13, 2005, and earn overtime.2
According to an agency document dated July 31, 2006, a supervisor
generally asks, either verbally or through email, for volunteers to
work a weekend clinic. Those who volunteer are normally taken in order
of seniority. It is undisputed that the primary care service line ran a
series of flu vaccine administration clinics (flu clinics) on Saturdays
in November and December 2005. In an attempt to improve service at the
flu clinics, management assigned some staff members working at the flu
clinics to use laptop computers. The record shows that only two LPNs,
who were African American, worked overtime in the flu clinic during this
period.
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
she 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, because 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, 143 (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).
In finding no discrimination, the AJ relied in part on the affidavit
of complainant's first-line supervisor, the nurse manager. The nurse
manager averred that she sent a general email notifying the staff that
flu clinics would be run on several successive Saturdays. According to
the head nurse, complainant responded by signing up to work overtime on
the third Saturday flu clinic. However, the nurse manager subsequently
determined that the first and second Saturday flu clinics had not been
as busy as expected, and informed the LPNs that they would not be needed
for the other Saturday flu clinics. The nurse manager averred that
the reason why two African American LPNs worked overtime on the first
and second Saturday flu clinics, and not complainant, was because one
possessed better computer skills than complainant to operate the laptop,
and the other signed up to work on those Saturdays, whereas complainant
had signed up to work only on the third Saturday flu clinic.
However, complainant averred that the nurse manager never notified or
asked complainant about working overtime at the flu clinic, and that
she first learned that other LPNs worked overtime at the flu clinic on
December 12, 2005. In addition, complainant averred that the LPN who was
purportedly selected for overtime on the basis of her superior computer
skills nevertheless had to be taught for an entire work day about using
the laptop, training that could have been administered to any of the
other LPNs. The record does not contain the actual email that the nurse
manager purportedly sent to the staff notifying them of the opportunity
to work overtime at the flu clinic or complainant's email requesting to
work on the third Saturday flu clinic.
The Commission finds that there are genuine issues of material fact over
whether complainant's first-level supervisor notified or asked complainant
about the opportunity to work overtime at the flu clinics in November
and December 2005. In addition, the record contains conflicting agency
explanations for its actions with regard to the overtime issue. In a
document dated July 31, 2006, the agency explained that the reason the two
African American LPNs worked overtime at the flu clinic was because they
had better computer skills to work with the laptops than complainant.
However, the nurse manager admitted in her affidavit that only one of
the LPNs actually worked on a laptop while the other LPN did not work
on the computer and only administered flu shots.
B. Claim 2: Hostile Work Environment
Complainant alleged that she was subjected to a hostile work environment
on the bases of race (Caucasian) and in reprisal for prior protected
activity when complainant's first-line supervisor, among other things,
yelled at complainant on several occasions, accused complainant of
not completing assignments, denied complainant the opportunity to work
overtime at the flu clinic, denied complainant the opportunity to attend
a conference, awarded a coworker a bonus for the MOVE program while
complainant did not receive a bonus, and verbally counseled complainant
about her leave usage.
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.
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). In other words, 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 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). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
The AJ found that complainant failed to show the existence of a work
environment that was severe or pervasive enough to constitute a hostile
work environment under Title VII.
The Commission finds that there is a genuine issue over whether the
alleged multiple incidences of yelling by the first-line supervisor,
combined with the allegations that complainant was not provided the
opportunity to work overtime in November and December 2005, constituted
a hostile work environment.3
In her affidavit, complainant averred that the nurse manager yelled at
white employees, such as complainant, but not at black employees. As an
example, complainant averred that on October 16, 2005, complainant was
conducting orientation for a new LPN when the nurse manager yelled and
screamed at complainant about two-hundred missing flu shots. According to
complainant, the nurse manager did not question a black LPN on duty that
day in a similar manner about the missing flu shots. Complainant also
averred that the nurse manager yelled and screamed at complainant and
belittled her in front of volunteers, patients, and another coworker when
complainant asked the nurse manager where to park at the Highland Drive
facility on November 15, 2005. According to complainant, on December 21,
2005, the nurse manager yelled and screamed at complainant when the nurse
manager found that a medical refrigerator in complainant's room had food
in it. When complainant tried to go to the nurse manager's office to
explain that the food was not hers, the nurse manager allegedly yelled
and screamed at complainant. Concerning an alleged yelling incident in
late 2004, the nurse manager admitted in her affidavit that complainant
could have perceived the nurse manager as yelling at complainant.
Complainant averred that she tried to address the incidents with the
nurse manager's supervisors; however, no action was taken. She averred
that the nurse manager's yelling interfered with her work performance
in that she became so stressed and upset that she would cry at work and
be unable to take patients.
Because the multiple incidences in question occurred within a short
three-month time period, and because they were allegedly severe and
frequent enough to render complainant unable to perform her basic job
duty of treating patients of the clinic, the Commission finds that there
is a genuine issue over whether complainant showed that she was subjected
to a hostile work environment on the basis of race.
C. Claim 3: Reprisal
Complainant alleged that the agency discriminated against complainant
in reprisal for prior EEO activity under Title VII when complainant had
to open the clinic without assistance on multiple occasions, and the
agency failed to adhere to its promise that complainant could perform
"extra duties" in the substance abuse clinic for a three-month period.
In finding no discrimination, the AJ relied in part on the affidavit of
the physician team leader, who averred that two LPNs normally opened
the clinic; however, there have been occasions when one LPN opened
the clinic because the other LPN was either "called-off" or on leave.
In that situation, the remaining LPN could still go and ask a registered
nurse (RN) for assistance in opening the clinic.
Although complainant averred that there was an inordinate number of times
when complainant was the only LPN to open the clinic, and that RNs,
in reality, did not know how to open the clinic to effectively assist
LPNs, the Commission finds that complainant failed to establish, by a
preponderance of the evidence, that the agency's articulated explanation
was pretext for reprisal.
For complainant's claim that the agency failed to adhere to its promise
that complainant could perform extra duties in the substance abuse
clinic in October 2006, the physician team leader averred that LPNs
who previously had been working mainly in the primary care service line
needed to learn how to staff the gynecology clinic and the women's health
service line. Complainant's first-line supervisor concurred, averring
that the clinic's services were evolving to meet the increasing number of
female patients, and that complainant had not amassed enough experience
working in the gynecology clinic to work in the substance abuse clinic in
October 2006. According to the affidavit of the physician team leader,
once complainant worked for a sufficient time in the gynecology clinic,
she was permitted to work in the substance abuse clinic.
Upon review, we find that complainant failed to establish that the
agency's articulated reasons were a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record, the Commission affirms in part
the agency's final order, finding that complainant failed to establish
discrimination on the basis of reprisal. However, the Commission vacates
the agency's final order with respect to the claims that complainant
was discriminated against on the basis of race (Caucasian) when the
agency did not provide complainant with the opportunity to staff the flu
clinic in November and December 2005, and that complainant was subjected
to a hostile work environment on the basis of race (Caucasian) when
complainant's first-line supervisor yelled at complainant on several
occasions and denied complainant the opportunity to work overtime at
the flu clinic in November and December 2005. The Commission remands
these claims for a hearing in accordance with this decision and the
order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 24, 2009
Date
1 The agency dismissed complainant's claims alleging discrimination when
(1) the agency failed to provide complainant an opportunity to work
overtime on November 12, 2005, and (2) the agency denied complainant's
requests for leave in May 2001 and May 2002. Complainant did not
challenge the dismissal of these claims, and did not file a brief
on appeal. The Commission declines to address arguments not raised on
appeal.
2 We note that this claim pertains to incidents that are also cited in
support of complainant's claim of hostile work environment harassment,
discussed in the text, infra.
3 The Commission finds that the other incidences alleged by complainant
with regard to the hostile work environment claim either did not affect
a term or condition of employment or were not sufficiently severe and
pervasive to alter the conditions of complainant's employment to create
an abusive working environment. For example, the record shows that (1)
complainant was awarded a bonus for participation in the MOVE program,
(2) complainant was never accused by anyone that she had sabotaged
a coworker's computer, and (3) complainant was not subjected to any
adverse employment action after being verbally counseled for her use of
sick leave.
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0120081646
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081646