0120092118
09-21-2009
Robert Jankowski, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robert Jankowski,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092118
Agency No. 200J-0578-2007101573
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 19, 2009 final decision concerning his 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., 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 Medical Technologist, GS-644-9, at the agency's Pathology and Laboratory Medicine Service (P&LMS), VA Medical Center, in Hines, Illinois.
On May 31, 2007, complainant filed the instant formal complaint. Therein, complainant claimed that he was subjected to harassment and a hostile work environment on the bases of sex (male), disability (severe arthritis) and age (over 40) when:
a. his co-worker made comments such as "lazy people" when making reference to him;
b. he was publicly humiliated when a co-worker made comments about the sanitation of equipment during a staff meeting;
c. in May 2007, he was denied training in the interpretation of hemoglobin testing results;
d. he was not promoted under new criteria for Title 38 employees; and
e. he was not assigned duties identified in his position description; instead, he was assigned duties which were designed to make him fail.
The record reflects that complainant has severe arthritis in his right hand and wrist; lacks flexibility in his right hand and wrist; and lost 50% of his hand strength. Complainant's symptoms include cramping, loss of sensation in his thumb and inability to grasp objects. While complainant has only limited use of his right hand, he has to use both hands to lift heavy objects. Complainant must use his left hand for grooming, eating and cooking. Complainant has lost fine motor skills and manual dexterity. Complainant also has spina bifida and spinal stenosis. Complainant's medical conditions adversely affect his ability to sleep, to take long walks and to drive for long periods of time. Complainant cannot lift more than 40 pounds and cannot stand or sit for more than two hours at a time.
Due to the limitations imposed by his medical conditions, complainant is unable to perform the essential duties of his position. Beginning in 1994, complainant was no longer able to draw blood. Beginning in 2000, complainant was no longer able to perform duties in central processing which required prolonged standing and cannot put on protective gloves. Complainant cannot grasp small items, such as pipettes and test tubes; cannot form any tasks that involve handling specimens, operating instruments and testing specimens; and cannot perform quality control duties. In March or April 2006, complainant underwent surgery to remove damaged bone from his right hand. The record reflects that management has kept complainant on light duty since before his surgery.
At the conclusion of investigation, complainant was provided with a copy of the report of the investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). After complainant timely requested a hearing on December 27, the AJ issued an order dated June 25, 2008 dismissing his request for a hearing. The record further reflects that upon receipt of complainant's motion, the AJ issued another order dated July 10, 2008 reinstating his hearing request. However, complainant subsequently withdrew his request. Consequently, the agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).
In its March 19, 2009 final decision, the agency found no discrimination. Without addressing the prima facie case analysis based on sex, disability and retaliation, the agency found that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.1
The agency also determined that complainant had raised a claim of harassment. Regarding this harassment claim, the agency found that the evidence in the record did not establish that complainant was subjected to harassment based on sex, disability and age. 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 second-level supervisor (S2) stated that complainant told her back in May or June 2006, that his co-workers had called him lazy but that to the supervisor's knowledge, it was not an issue during the relevant time pertinent to the instant complaint. Specifically, S2 stated that complainant "did tell me that someone had called him lazy or that people are walking by saying that he was lazy. In reference to that, he was talking about May or June, whenever he came back from his surgery, in 2006. Not the time period that is included."
Regarding claim b, in his deposition, complainant stated that he did not recall the alleged discriminatory event in which this claim nor does he know how it became part of the instant complaint. Specifically, complainant stated to the investigator "I have to be honest with you, I don't know where that came from. I was looking at my notes and I don't know how that got transcribed. I was trying to think about it, but I can't see where that came from." Complainant further stated "there was another issue with [S1], who is the Quality Assurance Supervisor at the laboratory, but not with the cleaning of equipment because she has no hands-on experience with the equipment that we work with back there...the way it's framed, I have no cognizant recollection of anything like that happening."
S2 stated that the reason why complainant does not recall this alleged discriminatory event is because it involved complainant being insubordinate and accusatory towards his first-level supervisor (S1). Specifically, S2 stated that complainant "didn't recall it is because it was mentioned in our ADR. What actually did happen is, that day, he was with another technologist. He was doing the resulting and the other technologist was operating both of the analyzers." S2 stated that a named supervisor informed complainant and the other technologist (T1) that "she had to do some water maintenance on the Millie pour system. Both [complainant] and [T1] said, 'well, we're really, really, heavy right now, if you can wait a little bit until we catch up and things slow down to do the maintenance, we'd really appreciate this.' No problem, so she left."
S2 stated that a few hours later, S1 walked by complainant's work area and noted "there was no one at the analyzers. As she was walking through going to the lady's room, she said, 'gee, I wish they would have told me, I could have started the water maintenance.' [Complainant] was in the front of the room where she was exiting. He heard her and turned around and said very loudly, 'well, I had to go take a pee and [T1], the man that he was working with, is in the bathroom with diarrhea.' He was very, very insubordinate to her. He then accused her - - 'and, furthermore, why don't you go ask one of your pets or cliques because those are the people you promoted.' [S1] had nothing to do with any of the promotions. She was very - - she wrote up a report of contract because of it."
Regarding claim c, , and the training, S2 stated that "...we had adequate coverage of trained personnel to perform the hemoglobin A1c testing [to which complainant is referring]. There was no need for additional technologists to be trained on it then." S2 further stated that during a meeting on May 30, 2007, with two Human Resources representatives concerning complainant's duties and OWCP claim,S2 asked them "should I go forward and continue to train him on this hemoglobin A1c testing and what do I do while we're waiting for the Department of Labor to make their final decision? I was told by both of them, sit tight, to have [complainant] do the light duties that he's doing and not to pursue anymore further training on his behalf."
Regarding claim d, the record reflects that in September 2006, the VA Central Office directed that all Medical Technologists should be "boarded" on a one-time basis to see if they met new professional criteria for promotion under Title 38, which was part of the conversion of the Medical Technologist position from Title 5 to hybrid Title 38. Agency officials were instructed to review the functional statements that the VA Central Office had written for grades 9, 10, 11 and 12, and then compare them with the current grades and functions of Medical Technologists. The record reflects that those who qualified at a higher grade level were promoted to that level. The record reflects that VISN 12 convened a board to review the Medical Technologists within its network of VA facilities; and that no board member could review employees from his or her own facility. Regarding this claim, the agency emphasized that management was "boarded" by a panel of outside officials, whose determination of promotion was predicated upon an objective comparison of national agency standards with complainant's actual duties; and that there was no evidence that the board was aware of complainant's age, or of his medical conditions.
S2 stated that she was not allowed to "board" her own employees so she did not directly influence the process or promotions of any of her Medical Technologists. S2 stated that if the medical technologists "were a medical technologist meeting the functional requirements or the statements, which you have, they were boarded as grade 9." S2 further stated that looking at complainant's functions "which were starting to be limited in the mid 1990s, he did meet most of the functional statements of his grade 9." S2 stated that complainant was "boarded" as grade 9 but was not promoted to grade 10.
Regarding claim e, complainant stated that when he returned to work following his hand surgery in May 2006, his hand was in a cast which he had to wear for six to eight weeks. Complainant further stated that management had not prepared anything for him to do upon his return. Complainant stated that he was later assigned to customer service which he was not happy about; and that a patient shook his hand to thank him and mistakenly injured his hand. Complainant alleged that his duties were designed for him to fail because his assignments did not amount to anything.
The record reflects that management met with complainant on December 29, 2006 to discuss the duties he could perform, and met again on January 4, 2007. At that point, management agreed to return complainant to duties that were more familiar to him. The record reflects that management agreed that complainant could review laboratory results for errors, which the agency viewed as important for accreditation, and that complainant could verify results for immunology. Management also considered assigning complainant to assist S2 with competency folders for other employees but ultimately decided not to due to privacy issues.
S2 stated that she felt that it would be a good assignment because complainant is a veteran and is very involved with the American Legion. Specifically, S2 stated that complainant is "very involved with the American Legion and he's a strong supporter of our veterans. We were just in the process of transitioning from an outpatient phlebotomy area, being down further - - in a different building to having all of the patients come here to a laboratory on an outpatient basis to be drawn. Traffic was very heavy and we felt that since [complainant] uses the VA as his - - he's a veteran himself. He's very involved in the American Legion and he was in a cast limiting him to doing a lot of other things, even resulting, for that matter." S2 stated, however, complainant was "very resentful. He felt that we were being very demeaning to him, that we were humiliating him by having him in the front of the laboratory giving customer service to our veterans."
S2 stated that after complainant re-injured his hand, management "decided, okay, let's try to put him back in the environment that he's used to . . .. We had our last set of light duties assigned to him in March." S2 stated that management considered assigning complainant to assist her with competency folders but "I didn't think it was appropriate for him to have access to that information." S2 stated that she disagreed with complainant's allegation that was not assigned duties identified in his position description, rather he was assigned duties which were designed to make him fail because he "is doing the duties that are included in the functional statement."
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 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
September 21, 2009
__________________
Date
1 For purposes of its review, the Commission has assumed, without deciding, that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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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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