0120091705
08-05-2009
Lenora C. Brewington, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lenora C. Brewington,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091705
Agency No. 2003-0657-2007100321
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 30, 2009 final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Secretary at the agency's Physical Medicine and Rehabilitation (PM&R), VA Medical Center, Jefferson Barracks Division in St. Louis, Missouri.1
On November 2, 2006, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On December 12, 2006, complainant filed the instant formal complaint. Therein, complainant claimed that she was subjected to harassment and a hostile work environment on the bases of race (Caucasian), disability (anxiety, stress, clinical depression), age (53), and in reprisal for prior EEO activity when:
a. on November 1, 2006, she was asked to assume the responsibility of setting up and providing support to the Polytrauma Clinic;
b. since 1996, on numerous occasions with the latest date being August 10, 2005, she was denied a reclassification of her position description;
c. on November 29, 2005, she was issued a proposed admonishment which was later mitigated to a written counseling, on January 19, 2007; and
d. on unspecified dates, her supervisor told her co-workers not to talk to her, and that she is constantly being watched.
On February 9, 2007, the agency issued a partial dismissal. The agency accepted for investigation claims a and c. However, the agency dismissed claims b and d pursuant to 29 C.F.R. 1614.107(a)(2), on the grounds of untimely EEO Counselor contact.
Prior to the issuance of the February 9, 2007 partial dismissal, complainant filed an amended complaint on December 12, 2006, requesting that the instant formal complaint be amended to include the following claims:
that she was discriminated against on the bases of race, disability, age, and in reprisal for prior EEO activity when:
e. on or about February 5, 2007, she became aware that the Billable Hours Report (a report she was told would be one of the duties that would assist in having her position upgraded) was taken over by a GS-11 employee;
f. on or about February 5, 2007, she became aware a new scheduling clerk was hired to relieve her of some of the duties she had been doing for ten years in the PM&R Clinics;
g. on or about February 5, 2007, she became aware her supervisor had been asking other employees to enter purchase orders, turn-in's, etc., rather than have her perform these duties;
h. on February 12, 2007, she became aware that some of her menu options had been taken away. She no longer has the option to forward, discontinue, cancel or schedule Polytrauma Clinic consult referrals. She is still held responsible to complete the consults. Without these menu options, complainant is not able to complete her duties and this will likely have a negative impact on her performance appraisal;
i. on or about February 12, 2007, her supervisor told her that she prefers to keep her own calendar. Although the performance standards state she "maintain calendar for Clinical Manager" she was not given this duty and feels her supervisor may use this against her;
j. effective February 20, 2007, all beds on 53S2 were converted to Polytrauma beds. She is responsible to interview every patient and follow up with every referring and primary physician.
The record reflects that on March 1, 2007, the agency granted complainant's request to include claims e - j in the instant complaint.
By letter dated April 2, 2007, complainant requested that the instant complaint be amended to include the following claim:
that she was discriminated against on the bases of race, disability, age and in reprisal for prior EEO activity when:
on April 2, 2007, she was given a notice of admonishment dated January 19, 2007, which was later rescinded and was issued a proposed reprimand.
On April 12, 2007, the agency dismissed complainant's amended claim that on April 2, 2007, she was given a notice of admonishment which was later rescinded and was issued a proposed reprimand pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
On April 12, 2007, complainant again requested that her complaint be amended to include the following claims:
that she was discriminated against on the bases of race, disability, age and in reprisal for prior EEO activity when:
k. on or about April 3, 2007, her supervisor completed new clinic profiles which was her responsibility;
l. on or about April 3, 2007, she realized that she was not receiving notices of admissions and discharges, which information is necessary in the performance of her duties;
On April 23, 2007, the agency granted complainant's request to include claims k and l in the instant complaint.
By letter dated April 17, 2009, complainant requested that the instant complaint be amended to include the following claim:
that she was discriminated against on the bases of race, disability, age and in reprisal for prior EEO activity when:
m. on April 17, 2007, she was issued a Letter of Reprimand.
On April 26, 2007, the agency granted complainant's request to include m in the instant complaint.
By letter dated May 2, 2007, complainant requested to have her complaint amended to include the following claim:
that she was discriminated against on the bases of race, disability, age and in reprisal for prior EEO activity when:
n. she received a "minimally satisfactory" on her mid-year performance appraisal and that S1 rated her as "Needs improvement to be Fully Successful or better."
On May 21, 2007, the agency dismissed complainant's amended claim (claim n) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that complainant was not aggrieved.
By letter dated June 6, 2007, complainant requested to have her complaint amended to include the follow claim:
that she was discriminated against on the bases of race, disability, age and in reprisal for prior EEO activity when:
o. on or about May 31, 2007, she received her final Rating of Record from her previous position. She received a rating of "minimally successful." This rating will remain in her Official Personnel Folder until the end of the rating period and may be used by her new supervisor when she completes her next Annual Rating of Record.
On June 8, 2007, the agency granted complainant's request to include claim o in the instant complaint.2
After the investigation concerning claims a, c and e - o, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). On April 14, 2008, the AJ issued an order, dismissing the formal complaint from the hearing process. In her Order, the AJ found that because complainant failed to follow the AJ's orders, she remanded the case to the agency for issuance of a final decision. Therefore, the agency issued the instant final decision on January 30, 2009.
In its January 30, 2009 final decision, the agency found no discrimination. Specifically, the agency found that complainant did not establish a prima facie case of race and age discrimination. With respect to the basis of disability, the agency found that complainant did not establish a prima facie case of disability discrimination.3 The agency found, however, complainant established a prima facie case of reprisal discrimination. The agency further around that management articulated legitimate, nondiscriminatory reasons for its actions which she failed to show were a pretext.
With respect to the harassment claim, the agency found that the evidence in the record did not establish that complainant was subjected to harassment based on race, disability, age or prior protected activity. Specifically, the agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim a, complainant's supervisor (S1) denied that complainant was responsible for setting up the Polytrauma Clinic. S1 stated that according to her position description, complainant was required to do all scheduling for PM&R and that the Polytrauma Clinic was simply a new addition to the PM&R. S1 stated that she asked complainant to go online and see which facilities around the area that "have traumatic brain injury programs. That is the extent of setting up. She didn't set up any of that." S1 stated that because complainant refused to do the scheduling, she did it herself.
Regarding claim c, S1 stated that on November 29, 2006, complainant was issued a proposed admonishment for failing to follow her orders. Specifically, S1 stated that she asked complainant to schedule a patient with the Polytrauma Clinic and complainant said, "'it's not going to happen.' Actually, when all this was going on, I made little notes to myself so I would remember. And she said a little bit more than that. 'You know', I said, 'Are you refusing to do that?' And she said she was. She said, 'it's not going to happen.' I said, 'You know I'm going to have to do something about this.' She said, 'Do what you have to do.'" S1 stated that she proposed an admonishment which was later reduced to a written counseling based on complainant's agreement that she would seek assistance from EAP concerning anger management and request a desk audit. S1 stated that during the relevant time, complainant tried to have to her position re-classified as a GS-6 but was turned down. S1 further stated that she felt that a desk audit might solve complainant's dissatisfaction with her GS-5 level.
Regarding claim e, S1 stated that the complainant was not responsible for the Billable Hours Report duty, and that it was not in her position description. S1 further stated that complainant "did it for about three or four months. What happened was is when I came back - - I was deployed to Iraq. When I came back, they had started this Billable Hours Report. And at that time, a therapist was doing it because [complainant] told me she refused to do. She wasn't going to do it." S1 stated that [a named Associate Chief of Staff] informed her that management "was redoing [complainant's] position description trying to get her upgraded, was that it is possible that doing that report may help her get upgraded. So my thought was, we'll try to redo her position description again and try to get her upgraded. Honestly, we were all trying to get her upgraded. So she was started to do it. I think she probably did it for about three or four months." S1 stated, however, that complainant stopped doing the report because she felt that other people should be doing it.
Regarding claim f, S1 stated that the clinic had been requesting for several years that a scheduling clerk be hired. Specifically, S1 stated "we had been looking at it for a long time trying to get a scheduling clerk, because we want all of our patient's visits scheduled, even the in-patients. And I remember probably about four years ago, saying something to [complainant] about it's possible that we're going to start calling patients instead of mailing letters. And she said, I don't have time. I'm not going to call patients. That's how she would do it. That's her personality. Well, I knew she didn't have time to start calling patients and schedule everybody, so we knew we needed a scheduling clerk."
With respect to complainant's allegation that the scheduling duties were totally taken away from her when the agency hired a new scheduling clerk, S1 stated "I'm going to say that it was still in the complainant's PD, and she still was expected to do some scheduling. But as far as routine, every day scheduling that she was doing, yes, it was turned over to this clerk."
Regarding claim g, S1 denied taking purchase orders, turn-in, etc. duties from complainant. S1 further stated that the purchase order was not the exclusive duty of complainant because other employees prepared them as well. S1 stated that she does not recall telling other employees to prepare them "not any more than I always have. It's in their position description, too, to do that." S1 stated that during the relevant time, there was an unusually large number of purchase orders taking place and that she called on many employees, including complainant, to prepare the orders.
Regarding claim h, S1 denied that she ever requested any menu options be deleted from complainant's computer and was unable to explain what happened to the missing items. S1 stated that there was "at no time that I ever did take menus away from [complainant]." S1 stated that other employees have complained in the past that items seemed to disappear from their menu. S1 further stated that at one point a therapist told her "I can do longer do something. And come to find out for some reason they were accidentally - - the name was removed and we put it back on. I don't know if that happened during that time, but there was no conscious effort going on to take any menus away from [complainant]."
Regarding claim i, S1 stated that she does not recall telling complainant that she prefers to keep her own calendar. Specifically, S1 stated "I have a calendar that [complainant] buys me every year, because she has the purchase card. I keep the therapists, when they are going to be on leave, I write their names in there. And . . . if I have a meeting, I'll write it in there or I put it on my Outlook. I've never done anything different. And in February, nothing changed. It had been the same way all the years, so I'm not really sure - - I do not think I said that." S1 further stated that complainant was not rated lower than usual due to any issues with keeping her calendar.
Regarding claim j, S1 stated that approximately six or seven years previously, the clinic became CARF accredited. Specifically, S1 stated that CARF "is rehabilitation. For the past seven years - - first, we started out with six beds, and we couldn't keep enough patients in those bed six beds; then we made it three beds. That's when we first became accredited about six or seven years ago. That's when [complainant] assumed the responsibilities of when one of those patients were discharged, she would go do an exit interview with them, kind of alike a satisfaction interview." S1 stated however that management made a determination to stop the exit interview procedure because "the interview questions have to be approved by central office, the specific questions that you use, and these patients are also being asked satisfaction questions by an outside agency that we used for six years. So we just discontinued doing that specific exit interview. It had nothing to do with [complainant]. It had to do with the program." S1 stated that the decision to stop the exit interview procedure "happened long before" complainant filed the instant complaint.
With respect to complainant's allegation that effective February 20, 2007, all beds were converted to Polytrauma beds, S1 stated "it could be. I don't know when they deemed their rehab beds all comprehensive medical rehab. They are not Polytrauma beds, they are comprehensive medical rehab."
Regarding claim k, S1 denied taking away the duty of completing new clinic profiles from complainant. S1 stated that she "always" completed new clinic profiles. S1 stated that she and complainant had both prepared clinic profiles in the past, and that she denied that during the relevant time she did anything differently.
Regarding claim l, S1 stated that complainant had complained to her that she was not receiving the admission and discharge lists regularly from the ward clerk who was supposed to send them. S1 further stated that she knew that it was a problem and that she told the ward clerk "please remember to send the notices out, because we need that information in order to do the exit interviews. [A named Ward Clerk] is not my employee." S1 stated that there was no reason she would not want complainant to have those reports because she needed them to prepare her reports.
The record reflects in her Report of Contact, the investigator contacted the Ward Clerk (WC) concerning complainant's allegation that she did not receive the admission and discharge lists regularly from WC, who was supposed to send them. The investigator stated that according to WC, he sent complainant emails about 53S2 admissions and discharges. On or about April 3, 2007, [WC] stares he went on vacation and when he returned from vacation, he forgot to send complainant notices. [WC] stated that no one told him to stop sending complainant those notices."
Regarding claim m, the record reflects that in November 2005, complainant was issued a proposed admonishment which was later mitigated to a written counseling on January 19, 2007 (claim c). Specifically, the record reflects that on January 19, 2007, complainant and S1 came to an agreement that the proposed admonishment would be reduced to a written counseling based on complainant's agreement that she would seek assistance from EAP concerning anger management and request a desk audit. S1 stated although complainant sought assistance from EAP, she did not follow through the agreement concerning the desk audit request. S1 also stated that following the January 19, 2007 written counseling, complainant had become increasingly disrespectful, would not follow instructions and treated co-workers badly. S1 stated that on April 17, 2007, complainant was issued a proposed reprimand because "she didn't follow through with what she was supposed to do when the admonishment was changed down to written counseling."
The Associate Chief of Staff (AC) stated that he was the deciding official to issue complainant a proposed reprimand because she did not follow through the January 19, 2007 agreement by requesting a desk audit. AC also stated that there was "a second charge in regard to insolent behavior to her supervisor which was [S1]. So since it was a breach of the agreement, they were talking about reinstating the admonishment, but then the second charge was added, which I believe is the use of insolent language toward to a supervisor. And that charge, according to human resources, had a minimum penalty of a reprimand. That's why she then had the proposed reprimand issued." AC stated that he sustained the subject reprimand after reviewing the e-mail correspondence between complainant and S1 and found that the language used in the responses by complainant "in those e-mails did constitute insolent language. And I did consult with human resources regarding the content"
Regarding claim n, S1 stated that she gave complainant a "minimally satisfactory" rating on her mid-year review.4 S1 stated while customer service and performance improvements are not considered critical elements of her complainant's job "but the fact that I rated her less than fully in that areas, means that overall she's minimally satisfactory." S1 stated that asked all employees, including complainant, what their goals are so their goals would be set for future performance. S1 stated that when she asked complainant what her goals were and complainant "told me she has nothing more to give to this job. And that's when she told me she doesn't have to like anyone here, and she doesn't have to pretend to like anyone here. And she said, I'll do what you tell me. She also refused to sign it. Her goal was to get another job."
Regarding claim o, S1 stated that she gave complainant a final rating of "minimally satisfactory." S1 stated "the only reason it was not an unsatisfactory is because that element that I rated less than fully is not considered critical, which it probably should be for this job." S1 acknowledged that the final rating is in her Office of Personnel Folder but that complainant's new supervisor "should start a brand new one with her new job. She won't be under the same performance appraisal. It's a brand new job that she has." S1 stated that complainant's new supervisor "did call me before she offered her the job...It had nothing to do with what I filled out on her performance plan." Furthermore, S1 stated that she gave complainant's new supervisor a good recommendation.
Disparate Treatment
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. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally 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 of 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, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment.
On appeal, complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. The Commission determines that the agency conducted a thorough investigation. 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.5
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
August 5, 2009
__________________
Date
1 In May 2007, complainant resigned from her Physical Medicine and Rehabilitation position and was hired as an Education Technician, GS-6.
2 For ease of reference, in light of the numerous amendments that were made to the original formal complaint, the Commission has re-named the agency's framing of complainant's claims as claims a - o.
3 The Commission presumes for purposes of analysis only, and without so finding, that complainant is an individual with a disability.
4 The record reflects that although the agency dismissed claim n pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim on May 21, 2007, the agency addressed the subject claim on the merits in its final decision.
5 Because we affirm the agency's finding of no discrimination concerning claim n on the merits for the reasons stated herein, we find it unnecessary to address the disposition of this claim on procedural grounds (i.e. failure to state a claim). We further note that complainant, on appeal, does not challenge an agency February 9, 2007 partial dismissal regarding claims b and d or the amended claim that the agency dismissed for failure to state a claim on April 12, 2007 (that she was discriminated against on the bases of race, disability, age and in reprisal for prior EEO activity when on April 2, 2007, she was given a notice of admonishment dated January 19, 2007 which was later rescinded and was issued a proposed reprimand). Therefore, we have not addressed these issues in our decision.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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