0120092526
11-18-2009
Larysa Pelc, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Larysa Pelc,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092526
Agency No. 2001-0546-2008101913
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 24, 2009 final decision 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.
During the period at issue, complainant was employed as a Medical
Technician at the agency's Pathology and Lab, VA Medical Center in Miami,
Florida.
On June 5, 2008, complainant filed the instant formal complaint. Therein,
complainant claimedthat she was subjected to harassment and a hostile
work environment in reprisal for prior EEO activity when:
1. on February 4, 2008, her co-worker informed her that her supervisor
(S1) had started watching her very carefully;
2. on February 20, 2008, after a patient had spit in complainant's face
while she was drawing the patient's blood. S1 would not allow complainant
to report the incident to employee health until the next day;
3. on February 22, 2008, she was informed by co-workers that S1 checked
up on her after a break and made comments about her in the presence of
patients;
4. on March 7, 2008, S1 was loud and rude while ordering complainant
to work despite complainant informing S1 that she was in considerable
discomfort and pain because of a broken tooth;
5. on or around March 12, 2008, S1 changed her tour of duty from
6:00am-2:30pm to 11:00am-7:30pm;
6. on or around March 26, 2008, she was issued a written counseling for
unscheduled leave usage and unauthorized absences from the work area;
7. on April 4, 2008, S1 told her and her co-worker to do the 2:00pm rounds
and that their lunch period was newly designated to be between 2:00pm
and 4:00pm, not earlier or later, and pointed her finger at complainant's
face stating "I am the supervisor and I decide what to do here;"
8. on or around April 14, 2008, she was issued a proposed reprimand
for disrespectful conduct towards S1 and failure to follow supervisory
instructions;
9. on or around May 2, 2008, management sustained the charges in the
April 14, 2008 proposed reprimand and issued her a reprimand;
10. on or around May 7, 2008, she was issued a proposed five-day
suspension for disrespectful conduct towards S1; and
11. on or around June 6, 2008, management sustained the charge in the May
7, 2008 proposed suspension and suspended her for five days, effective
on August 6, 13, and 27, 2008 and September 3 and 17, 2008.
Following the investigation of the complaint, 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). In accordance
with complainant's request, the agency issued a final decision on March
24, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its April 24, 2009 final decision, the agency found that complainant
established a prima facie case of harassment and disparate treatment
based on reprisal for prior EEO activity. The agency nonetheless found
that management articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to show were a pretext for
discrimination.
Regarding claim 1, S1 stated that she watches all of her employees,
including complainant, carefully. S1 further stated "when someone
disappeared from the work area, I have to be aware of where they are."
Regarding claim 2, S1 denied prohibiting complainant from going to the
Employee Health after complainant informed her that a patient had spit
on her during her 6:00 a.m. to 2:30 p.m. shift. Specifically, S1 stated
that when complainant completed her morning rounds "she came down to the
area between 9:00 and 10:00 in the morning and I come in at 8:00 o'clock.
And when this incident happened, she finished doing all her rounds,
that's when she informed me of that situation." S1 stated that she told
complainant "she needed to write up an incident report and she needed to
go over to employee health." S1 stated that complainant later went to
Employee Health butt "something happened. I don't know what happened.
And she came back and then she said she couldn't get in there until the
next day or something. I do not actually know what happened. But the
appropriate way that she should have handled that was that she should
have [gone] to the emergency room nurse because employee health doesn't
open up until 8:00 o'clock as well."
Regarding claim 3, S1 denied checking on complainant on February 22,
2008 following a break and made comments about her in the presence of
patients.
The former Chief, Medical Technologist (C1) stated that during the
relevant time, she was S1's supervisor. C1 stated that while she was
not aware of the alleged February 22, 2008 incident "but I know, again,
[S1] does make sure that the employees are there when they're supposed
to be there, that they do not take extended breaks, and they're working
as they are supposed to. Again, it is very unlikely for [S1] to discuss
employee issues in front of patients or even other employees."
Regarding claim 4, S1 denied being loud and rude while ordering
complainant to work despite being in pain. Specifically, S1 stated that
on March 7, 2008, complainant called in to say she could not come to work
because she had a broken tooth. S1 stated that she asked complainant if
she could come to work "because I think two or three people had already
called in. And I was asking her was she sure that she had to be off.
And then she said she was in pain and she couldn't make it, so I said
okay, thank you."
Regarding claim 5, S1 stated that on March 12, 2008, she changed
all employees' tour of duty temporarily, not just complainant's.
Specifically, S1 stated "all the employees got changed at the same time.
And it was because of short staff. When we are short staff, the
schedule will change or when I feel that they needed to be retrained.
I have three different shifts. And if I feel that person needs to [be]
retained in that area, I change all of them, not just one individual
person. I have ten phlebotomists. And all ten changed at the same time."
C1 stated not only was the tour of duty changed for complainant "...but
it was changed for other employees as well in the phlebotomy unit."
C1 further stated "this is something that is left to the supervisor to
better handle her unit, and make sure that everybody is trained properly
in different areas of the unit. And that's mainly the reason why the
tour of duties were changed for everybody, so that everybody could rotate
through the different areas that are covered by phlebotomy."
Regarding claim 6, S1 stated that on March 26, 2008, she gave
complainant a verbal counseling, not written counseling, concerning her
unscheduled absences and tardiness. S1 stated that the purpose of the
verbal counseling was to remind complainant to report to work timely.
Specifically, S1 stated that "the patients come here at 6:00 o'clock
in the morning. They be expecting for the lab to open up at 7:00,
not after. So my job is to explain that to her...to let her be aware."
S1 stated that she also issued similar counseling to other employees.
C1 stated that S1 made the determination to give complainant counseling
concerning her tardiness and "it was okayed by me. She was not the only
one to receive it. Unfortunately we have some abuse of leave in that
department, and several employees, not all, but several employees did
receive the counseling."
Regarding claim 7, S1 stated that complainant and a named co-worker
(CW) work the 11:00 a.m. to 7:30 p.m. shift, and their lunch hour is
from 2:00 p.m. to 4:00 p.m. S1 stated that on April 4, 2008, she noted
that complainant and CW were having an early lunch and she reminded
them that their lunch hour "is not until 2:00 - - between 2:00 and 4:00.
But they were going to lunch early when it was interfering with the rest
of the staff that comes at 6:00 to 2:30." With respect to complainant's
allegation that S1 pointed her finger in complainant's facing stating
"I am the supervisor and I decide what to do," S1 denied it.
Regarding claim 8, S1 stated that on April 14, 2008, she issued
complainant a proposed reprimand for disrespectful conduct towards
her and failure to follow supervisory instructions. Specifically,
S1 stated that on April 4, 2008, complainant stormed out of her office
in a disrespectful manner. The record reflects that in the April 14,
2008 Proposed Reprimand, S1 stated that on April 4, 2008, she assigned
phlebotomy "pick-up to one of the technicians. You told your supervisor
that you would accompany the technicians; however, when your supervisor
was informed that there were only nine (9) patients on the list, she
directed you to stay in the Out Patient Lab because it was not necessary
for two technicians to go. You stormed out of her office and in a loud
tone of voice stating that you were going anyway. Your supervisor asked
you if you were refusing a direct order. And you said yes, that you
were going anyway, or words to that effect."
S1 further stated that when she asks complainant "to do any task or
anything, whatever I ask her to do, she always [has] a reply, a negative
reply, and she doesn't want me to tell her what to do. I mean, I'm
not trying to tell her what to do, but, I mean yeah, my supervisor job
is to explain - - when an incident happens and then I will address the
incident with her, she does not want to hear anything I have to say."
S1 further stated that she gave complainant "a chance to reply because
it went through human resources, so she replied."
C1 stated that S1 informed her of the April 4, 2008 incident and "it is
usually . . . depending on the amount of work that is to be collected
during the 2:00 p.m. rounds, she would assign one or two techs, or
maybe three, depending on, number one, the amount of work that is - -
that needs to be collected, and number two, the amount of personnel that
she has on hand to remain in the lab, okay." C1 further stated that on
that particular day, there were nine patients to be drawn so S1 "asked
one of the phlebotomists to go upstairs. [Complainant] said that . . .
she wanted to go upstairs to draw the blood, because that way it would
be faster, but [S1] told her no, to stay behind. And [Complainant]
got upset, and she says, well, I'm going anyway. And [S1] says . . .
if you do that, that is . . . not following supervisor's orders.
And she says well, I'll go anyway, and she left the office." C1 stated
that complainant never went upstairs "but still, she was disrespectful."
Regarding claims 9 - 11, the record reflects that on April 14, 2008,
a meeting was held to address concerns in the work environment within
complainant's section and complainant, union officials, Human Resources
and S1 were present. The record further reflects that as the meeting
progressed, complainant became angry and directly accused S1 of being
a liar in the presence of all the participants. C1 stated that during
the meeting, complainant "got very upset. She called [S1] a liar.
She even . . . insulted the union members, and told them, called them
untrustworthy or something like that, or unreliable or something like
that, as well as management." C1 stated that based on complainant's
disrespectful behavior and outburst, she was given a proposed five-day
suspension. The record reflects that although complainant was advised
that her behavior during the April 14, 2008 meeting was unacceptable, she
continued to accuse S1 of lying. C1 stated that management sustained
the changes in the April 14, 2008 proposed reprimand and suspended
complainant for five days, effective on August 6, 13 and 27, 2008 and
September 3 and 17, 2008 "because of her disrespectful behavior."
The Chief of Pathology (Chief) stated that he was the deciding official
to sustain the charges outline and issue complainant the reprimand
"because of the behavior of the employee with respect to the supervisor."
Specifically, the Chief stated that complainant "offended her supervisor
in the presence of other employees or in the presence of other individuals
and called her supervisor a liar."
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
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. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions, as addressed above. Neither
during the investigation nor on appeal has complainant produced evidence
that these proffered reasons were a pretext for unlawful retaliation.
Therefore, after a review of the record in its entirety, including
consideration of all statements on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision because the preponderance of the evidence of record 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
November 18, 2009
__________________
Date
2
0120092526
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120092526
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