0120141978
08-16-2016
Petronia B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Petronia B.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141978
Hearing No. 530-2010-00152X
Agency No. 200H05422009103725
DECISION
Complainant filed an appeal from the Agency's March 28, 2014 final order concerning her equal employment opportunity (EEO) complaint. She alleged 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).
ISSUES PRESENTED
The issue presented is whether the Administrative Judge's decision, finding no discrimination following a hearing, is supported by the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Therapist at the Agency's VA Medical Center facility in Coatesville, Pennsylvania.
On July 30, 2009, Complainant filed an EEO complaint, alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American) and reprisal for prior protected EEO activity when:
1. On May 4, 2009, Complainant received a verbal notice of disciplinary action;
2. On May 28, 2009, she received a notice of a proposed three-day suspension, which was reduced and for which Complainant served a one-day suspension with pay and benefits on July 6, 2009;
3. On August 31, 2009, Complainant's supervisor (S1) denied Complainant's request for medical equipment.
In addition to the above referenced disparate treatment claims, Complainant alleged that she was harassed and subjected to a hostile environment, when:
4. On November 6, 2006, Complainant was threatened with placement on a Performance Improvement Plan ("PIP");
5. During February of 2007, Complainant's office was relocated to the "OT ADL kitchen," depriving her of privacy with patients, due to her supervisor's constant interruptions;
6. On April 7, 2007, her supervisor told Complainant she must pick between two conferences as she could not attend both;
7. On August 7, 2007, Complainant's supervisor did not offer Complainant support to continue performing the "FEES procedure" she had been doing for ten years;
8. On August 24, 2007, Complainant was denied funding for training in the stroboscope procedure, requiring her to have to fund the training on her own;
9. On September 5, 2007, her supervisor (S1) advised Complainant that she would require oversight by a psychiatrist for her FEES studies;
10. On November 11, 2007, S1 provided Complainant with limited funding for the ASHA convention;
11. Sometime in early 2008, S1 advised Complainant that her efficiency ratings would have to be raised;
12. On June 9, 2008, S1 advised Complainant she was the subject of a patient abuse charge;
13. On September 9, 2008, Complainant received a reprimand, although S1 had recommended she receive a three-day suspension for the matter on July 16, 2008;
14. On September 24, 2009, when medical equipment was shipped to Complainant's office, another manager (S2) advised Complainant she was not to keep it and to bring it to S2;
15. On September 30, 2009, S1 sent Complainant a note saying that Complainant was to immediately bring the equipment to S2; and
16. On the afternoon of September 30, 2009, S2 reprimanded Complainant for an incident involving a patient.
The pertinent record shows that Complainant is African-American and her race was known to management officials. Complainant was the only African-American speech pathologist.
She reported to the Program Manager (S1). Her second-level supervisor was the former deputy Associate Director for Patient Care (not named herein). Complainant named another individual (S2), who was a supervisor in the Rehabilitation unit. S2 acted as S1's program manager when S1 was out of the office.
She also had prior EEO activity in 2006, which involved the same individual (S1), named as the responsible management official for the alleged discrimination in this complaint.
Claims 1 to 2 - Notice of disciplinary action and suspension
On May 28, 2009, she received a one-day suspension for failure to safeguard confidential information. A supervisor for the rehabilitation section discovered some confidential patient consults on Complainant's desk. Complainant was on medical leave at the time. Complainant denies that she left any documents on her desk.
S-1 recommended a three-day suspension for the perceived violation. S1 testified that the proposed suspension was justified and in line with the Agency's progressive discipline policy. The second level supervisor reduced to a one-day suspension. On July 6, 2009, Complainant served the one-day suspension with pay and benefits.
Claim 3 - Denied request for medical equipment
Complainant claimed that she would be more efficient with the equipment. S1 acknowledged that he denied Complainant's request for medical equipment. When she questioned why she could not have the equipment, the supervisor stated that the equipment is used for physical therapy and was not necessary for speech therapy.
Claim 4 - Threatened with placement on a PIP
On November 6, 2006, S1 discussed Complainant's performance with Complainant after Complainant failed to have a consent form signed appropriately. Complainant did not dispute that she failed to submit a properly signed consent form. S1 denied that he threatened to place Complainant on a performance improvement plan.
Claim 5 - Office relocated
The record documents, and the hearing testimony corroborated, that Complainant's office was relocated. The move occurred after S1 determined that he needed the room for audiology in order to put in an audiometric booth in for testing. S1 testified that it was done to provide an area for two health technicians.
Complainant raised concerns that others had access to her office. The record included testimony that technicians would enter her office when she was not there to fix the equipment. There was no evidence that other employees received more favorable treatment.
Claim 6 - Told to pick between conferences
Complainant requested to attend two conferences. She was told to select between the two conferences. S1 denied the request, because the two conferences were so close together in time that it would take Complainant out of the office for a two week period. She was directed to choose between the two conferences.
Claims 7 to 10- Lack of support and funding for equipment and funding
Complainant testified that her supervisor (S1) did not offer support to continue performing the "FEES procedure, "although she had been working using the procedure for years.
S1 also denied funding for stroboscope training and convention. She was required to fund for training in the stroboscope (fiber optic endoscope) procedure. Complainant was a speech therapist. During this period, the Agency did not conduct any procedures that utilized the video stroboscope of the vocal fold anatomy and physiology. The cost of the equipment was estimated to be between $40,000 to $50,000 per unit. Management determined that the $50,000 expenditure was not cost-efficient.
S1 acknowledged that Complainant was provided partial funding for the ASHA conference. S1 authorized her to attend in the past and Complainant had received full funding in the past, was authorized by S1. S1 stated that resources were limited and that Complainant had been permitted to attend a conference within the same fiscal year. The Agency did not provide full funding, but it did allow Complainant to use the remaining available funds for the ASHA conference.
S1 also advised Complainant that she would require oversight by a physiatrist. S1 testified that this was done for the protection of the Agency. Complainant did not identify anyone similarly situated who was treated better.
Claim 11 - Told that her efficiency ratings would have to be raised
S1 told Complainant that she would need to raise her efficiency ratings, but S1 stated that he has done so with other employees. Complainant did not provide any comparative evidence to show that she was treated less favorably.
Claims 12 and 16 - Patient abuse charge and reprimand for patient abuse incident
The record includes testimony that, on May 22, 2008, S1 called Complainant into his office and advised her that she had been accused of patient abuse. S1 stated that an incident was brought to his attention by the Director of Psychology. A psyche patient told a psyche technician in therapy that the complainant had been providing her rides to and from church. She admitted that she did do the infractions for which she was charged. Complainant explained, however, that all she had done was gave a patient a coat, invited the patient to Thanksgiving Dinner and gave her rides to church. She denies that this was patient abuse. S1 consulted his supervisor and Human Resources. He initially proposed a three-day suspension for breaking the patient abuse policy, but the proposed action reduced the matter to a reprimand after Complainant provided a response to his supervisor.
Claim 13 - Proposed Disciplinary Action
On September 30, 2009, S2 verbally reprimanded Complainant for an incident involving a patient. No personnel action was taken.
Claim 14 - Medical Equipment
On August 31, 2009, S1 denied Complainant's request for equipment. On September 24, 2009, a pulse "oximeter" was mistakenly delivered to Complainant's office. Complainant averred that all of the other therapists in other therapy departments have this equipment at their disposal. When the medical equipment was shipped to Complainant's office, S1 advised S2 that it was a mistake. S2 then advised Complainant that she was not to keep the equipment. Complainant wanted to know why the equipment could not be permanently assigned to her. The Agency agreed to allow Complainant to borrow the equipment.
Claim 15 - Direction to return misdirected equipment
S1 testified that the equipment was used for physical therapy and occupational therapy, but was not needed for their work. The equipment was initially requested for one of the physical therapy areas and then later requested for a new physiatrist that came on board in December of 2008. Complainant was advised to return the equipment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
The AJ held a hearing on September 24, 2012. The AJ determined that the period at issue was November 2006 through September of 2009.
Six witnesses participated, including Complainant. The AJ accepted seven documents into evidence, in addition to the 26 documents which Complainant attached to her prehearing statement. One of the witnesses who testified was called by Complainant. That witness testified that she had not observed any discrimination. The hearing record revealed the following facts.
The AJ Decision
The AJ issued a bench decision on October 22, 2012, and issued a final decision on November 13, 2012. In a 46-page decision, the AJ found that "Complainant has failed to establish by a preponderance of the evidence that the agency unlawfully discriminated against her because of her race or in reprisal for her prior EEO activity."
Next, the AJ found that the alleged acts were not severe and pervasive to affect the terms and conditions of her employment and found no hostile work environment.
The AJ stated that she considered all of the matters appearing in the record or which were provided as hearing testimony. The AJ explained that some of the matters played no part in this decision because "they could not be adequately established as facts or were irrelevant to the accepted claim or lacked probative value." The AJ stated that the primary responsible management official named in this matter was S1. The AJ stated that S1 "presented as a credible witness whose hearing testimony was generally corroborated of his prior sworn affidavit testimony. She found his testimony "worthy of credence." The AJ was also "persuaded by the brief, but significant testimony of complainant's own requested witness" who testified that she never witnessed S1 discriminating against complainant or any other employee.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ unfairly limited the scope of the hearing, failed to consider or disregarded her testimony that Complainant was punished for the same behavior exhibited by the full-time white therapist. Complainant also contends that the AJ inappropriately gave more credence to the testimony of the white therapist. She maintained that she was disadvantaged by the AJ's change in the scheduling of the hearing. The change resulted in her witness having to testify by phone, which Complainant stated placed undue stress on Complainant and the witness.
In response, the Agency argues that the AJ decision was "thorough and well analyzed" and requests that the final order be affirmed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
In this case, the AJ's determination was based on his the testimony of the witnesses and the absence of evidence that the Agency's decisions were motivated by Complainant's race or prior EEO activity. Although Complainant challenged the timing of the hearing and some of the factual determinations (such as her title and the dates of her assignments), she did not offer evidence sufficient to show that the AJ erred in her determinations. We discern no reason to disturb the AJ's decision.
CONCLUSION
Accordingly, we AFFIRM the Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 16, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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