0120091976
09-08-2009
Lesia L. Herron, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Lesia L. Herron,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091976
Agency No. ARBRAGG08FEB00803
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 12, 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.
During the period at issue, complainant was employed as a Registered Nurse, GS-0610-10, at the agency's Post Anesthesia Care Unit (PACU), Department of Nursing, Womack Army Medical Center (WAMC), Fort Bragg, North Carolina.
On February 21, 2008, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On March 25, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American), color (black), and in reprisal for prior protected activity when:
a. on March 7, 2008, she along with [a named co-worker] were the only two staff members assigned to the Pre-Op holding area. When the matter was addressed to the Sergeant, Noncommissioned Officer in charge (SGT), he responded by saying the staffing issue had been reviewed the day prior and the decision was made to allow the staff shortages in Pre-Op rather than in Phase 1;
b. on March 5, 2008, [a named co-worker (CW)] witnessed complainant entering APVs (Patient Care Time) into the computer. CW informed complainant that APVs are submitted by [a named Secretary]. [A named Captain (C1)] required complainant to submit her own APVs even through other co-workers are allowed to give the secretary their APVs for entry into the system;
c. on February 29, 2008, C1 allowed [a named co-worker (CW2)] to verbally abuse her in the presence of a patient;
d. on February 29, 2008, C1 allegedly denied her the opportunity to attend a PACU conference;
e. on February 26, 2008, C1 informed her that she had Charge Nurse duties for two weeks in a row; however, Charge Nurse duties are not assigned to other nurses for two straight weeks;
f. on February 25, 2008, SGT and C1 forced her to stay 30 minutes past the end of her tour;
g. on February 13, 2008, C1 counseled her in writing about a patient complaint that centered on customer service and was told to attend customer service classes. Complainant alleged that C1 also received patient complaints on CW and two other co-workers but she did not counsel them in writing or direct them to attend a customer service class;
h. on February 8, 2008, SGT told her that her input was not valid because she was black but that if [named co-worker (CW3)] provided input then everything would probably be ok. This matter relates to an incident complainant witnessed between an agency employee and CW where CW spoke to the agency employee with disrespect and pointed his finger at her even after she asked him not to;
i. on December 18, 2007, CW received a patient complaint from a Colonel accusing him of a HIPPA violation and overall rudeness. C1, at a minimum, did not counsel him in writing or direct him to attend a customer service class;
j. on October 2, 2007, the Patient Transport Manager submitted a complaint on a staff member citing rudeness to complainant, who was Charge Nurse for the day. Complainant discussed with C1; however, C1 did not follow up on the complaint. All patient complaints submitted to S1 about complainant result in written counseling;
k. on August 19, 2007, complainant was called into C1's office for taking 20 minutes on a 15 minute authorized break. Complainant alleged that C1 told her that she needed to be very careful because people were watching "us" because we are black and have to be extra careful. Complainant also alleged that C1 stated that all white employees have been complaining about her; and
l. on March 24, 2008, C1 issued her a letter of reprimand.
On April 10, 2008, the agency issued a partial dismissal. The agency accepted claims a - h and l for investigation.1 The agency dismissed claims i - k pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
The record reflects that on two subsequent occasions, complainant requested that the instant formal complaint be amended to include the following claims:
that she was subjected to harassment and a hostile work environment on the bases of race, color and reprisal for prior EEO activity when:
m. on April 3, 2008, CW provided a false statement against her;
n. on June 17, 2008, CW talked about weapons; and
o. on June 18, 2008, CW talked about guns, how certain mechanisms could make them inaccurate, and spoke loudly about shooting people in the head.
The agency granted complainant's request by including claims m - o in the instant complaint.
At the conclusion of investigation of claims a - h and l and amended claims m - o, complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On February 12, 2009, the agency issued the instant final decision.
In its February 12, 2009 final decision, the agency found no discrimination concerning claims a - h, l and m - o. Specifically, the agency found that complainant did not establish a prima facie case of race, color and reprisal discrimination. The agency further found that complainant did not establish a prima facie case of hostile work environment harassment discrimination. The agency found that management nevertheless articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Regarding claim a, SGT denied telling complainant that staffing shortages had been identified the day prior and that it was his decision to keep the shortage in Pre-Op rather than in Phase 1. Specifically, SGT stated "that is a decision that would be made between the Head Nurse and the Charge Nurse the subject matter expert on patient follow, triage, and post operative care." SGT further stated "I am not involved in that decision making process and I have limited knowledge on the subject matter."
C1 stated that she was not sure about what happened on that particular day but "as I stated, I prefer to have a shortage in the pre-op than have a shortage in Phase 1." C1 further stated "we do have a patient ratio as far as that. But in the pre-op area, they can get away with just two nurses. Because the only thing they pretty much do is start IVs and take information." And I can get my supervisor or [a named Colonel], and they can supply someone to come in to the pre-op to assist them. But in Phase I - - we don't have the same type of people that's trained that's able to go into Phase I."
Regarding claim b, C1 stated that "all nurses are required to put in their APVs. If we have a secretary present, then the secretary will put in their APVs. If the secretary is overwhelmed with putting in APVs, pulling other documentation, then I ask that nurse to go ahead and put in her APVs for that day." C1 stated that on that particular day, complainant "wanted to know why she had to put in her own APVs, and I told her the rationale behind it, because for that week - - or those three or four days she hadn't put in any APVs. Whether the secretary had been busy or whether she called out sick that week, I just can't remember. But I asked her if she would put in her APVs for that day."
Regarding claim c, C1 stated that on February 29, 2008, she "just happen to walk over there, for whatever reason it was, and [Complainant] stated to me that [CW2] was rude to her, and that the patient could witness this incident. And I pulled her to the side and I said, 'that was inappropriate to approach to this patient right now, since he is going to surgery." Specifically, C1 stated that she felt it was inappropriate for the patient "to get into a confrontation with [Complainant] stating that [CW2] verbally abused her, according to [Complainant]. I told her it was inappropriate at that time."
Regarding claim d, C1 stated that she denied complainant's request to attend the PACU conference because she did not meet the hospital criteria for TDY. Specifically, C1 stated "the hospital has certain classes that you must attend, which are Grand Rounds, which are in-services that the hospital offers." C1 stated that according to her boss, nurses "must attend two hospital in-services, and charge nurse and ACLS is not an in-service. It is something nice that [Complainant] likes to have under her belt, but it is not required for one of the in-services that they require."
Regarding claim e, C1 stated that complainant knew she would be charge in the pre-op during the week of March 3 - 7, 2008. C1 further stated that the schedule "is posted 3 weeks in advance and the charge position is outline on the schedule. Due to a shortage in Phase 1 25 - 29 February 08 I notified [Complainant] verbally that she would have charge for the entire week." C1 acknowledged that Charge Nurse duties are normally for one week. C1 stated, however, if there is a "shortage of RN's or emergencies that arise the nurse may have to pull charge nurse duties for two weeks." C1 stated that three named nurses "all have pull two weeks of charge nurse duties."
Regarding claim f, C1 denied forcing complainant to stay 30 minutes past her end of tour against her will. C1 further stated "no one is ever forced to do anything. Another reason is, if they have patients, they cannot just leave those patients. They cannot leave those patients until we find someone to stand in their place." C1 stated that on that particular day, she was in a meeting but SGT "was trying to do the right thing, trying to find someone that could stay in their place. And in the meantime - - once, I guess, I can back to the floor around 2:30 or 2:35, they let me know what had happened. And on this particular day, [named nurse], one of my contract nurses, did come over to that area to cover [Complainant]."
Regarding claim g, C1 acknowledged that she counseled complainant in writing about a patient complaint and required her to attend a Customer Service class. Specifically, C1 stated that complainant had received three customer complaints and "based on their guidance, I was supposed to set up a class for her to see [named representative], which is the customer service representative. Maybe she can give her some training so far as learning how to deal with customers so that she wouldn't receive complaints." With respect to complainant's allegation that other white employees have received patient complaints but were not counseled, C1 stated she has counseled other employees.
Regarding claim h, complainant alleged that on March 8, 2008, SGT told her that her input was not valid because she was black. The record reflects that the incident surrounded an alleged argument between CW and a named co-worker. The record reflects that there is some discrepancy of what had happened during the incident and what was said in regard to looking into the incident. SGT stated that a statement from CW3 would possible bring a different perspective and validate complainant's statement. The record reflects that SGT denied saying that complainant's statement was invalid. Specifically, SGT stated that since CW3 witnessed the event in question and "she was asked her opinion on what happen to get her point of view." According to CW3, she witnessed the incident but stated that the matter was totally work related. CW3 also stated that there were no racial overtones.
C1 stated that after she was informed of the incident, she inquired witnesses to get their side of the story. C1 stated that complainant never reported the incident to her concerning SGT's comments. C1 stated that after gathering information from witnesses, she came to the conclusion that SGT did not harass complainant because of her race, color or prior protected activity.
Regarding claim l, C1 stated that on March 24, 2008, she issued complainant a letter of reprimand for discourtesy to patients/family members and other co-workers. Specifically, C1 stated that complainant received four patient complaints "for disrespect and rudeness, and she had received several statements from different employees outside of our section for her disrespect and rudeness." Furthermore, C1 stated that complainant's race, color and prior protected activity were not factors in her determination to issue complainant a letter of reprimand.
Regarding claim m, C1 stated that CW approached her stating that he overheard complainant making a comment that she would like to put a bullet in C1. C1 stated after CW told her that he heard complainant making threats, "I told him at that point, 'you have just told me something where someone has threatened me, then I must let my immediate supervisor know.'" C1 stated that when she went to see her supervisor, she was asked to have CW "put it in writing and he put it in writing." C1 stated that from that point, the issue was taken out of her hands.
Regarding claims n and o, the record reflects that on June 17 and 18, 2008 complainant overheard CW talking about weapons. The record further reflects that evidence in the record shows that CW, along with fellow co-workers, was talking about a popular video game that they all play. The record reflects that the conversation did not involve complainant either directly or indirectly. C1 stated that after complainant informed her of her concerns about CW, she received a statement from a patient in which he stated that he was aware that CW and other agency employees were discussing a video game but felt that it was inappropriate because of the nature of the game and what the soldiers have endured. C1 stated that she took complainant's concerns to the Chief of Nursing and the hospital commander to have the matter investigated further. Specifically, C1 stated "I took appropriate actions. Once [Complainant] verbalized her fears and complaints to me, I went to higher command. And nothing has ever been based on her race, color or anything to that effect." C1 stated that since the incident was reported, complainant was moved out of her section, without any contact with CW.
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).
On appeal, complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. 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 concerning claims a - h, l, and m - o because the preponderance of the evidence of record does not establish that discrimination occurred.2
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 8, 2009
__________________
Date
1 The record reflects that at the time of the April 10, 2008 acceptance of complainant's claims, there was not yet any claim identified as "claim m." Nevertheless, in its April 10, 2008 partial dismissal, the agency stated that it was dismissing a "claim m" on the grounds of untimely EEO Counselor contact. The Commission acknowledges that complainant indeed subsequently raised a matter that is identified as "claim m," referenced above.
2 On appeal, complainant does not challenge an agency April 10, 2008 partial dismissal regarding claims i - k. Therefore, we have not addressed these issues in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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