0120073333
06-17-2009
Sherree M. Sales, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sherree M. Sales,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073333
Agency No. 200L06142007100323
DECISION
On July 16, 2007, complainant filed an appeal from the agency's June 14,
2007 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Outpatient Pharmacy Technician, GS-6, at the Memphis, Tennessee
Veterans Affairs Medical Center. On December 16, 2006, complainant
filed an EEO complaint alleging that she was discriminated against on
the basis of race (Black) when: (1) on October 19, 2006, her Supervisor
(S1) referred to her and her two coworkers (C1 and C2) as "The Three
Stooges" and "The Three Musketeers," which she believed were derogatory
and demeaning references to her race; and (2) on or about October 24,
2006, S1 informed her that she could not work overtime every Saturday.
Prior to the conclusion of the EEO investigation, the agency dismissed
Claim 1 for failure to state a claim. The agency concluded that the
"Three Stooges" and "Three Musketeers" incident described by complainant
as harassment did not cause a harm or loss regarding a term, condition
or privilege of her employment. Specifically, complainant alleged that
that on October 19, 2006, S1 asked her (out loud across the pharmacy) if
she wanted to work on October 21 and October 28, which she agreed to do.
C1 was then asked to work on the same dates which she agreed to do.
S1 then yelled across the pharmacy and asked C2 if he wanted to work
on those same dates as well. C2 also agreed to work on those dates.
S1 then allegedly1 stated, "It looks like The Three Stooges will be
working on Saturday, better yet The Three Musketeers." S1 testified
that she did not remember making this statement but if she did it was
not intended to be offensive or directed toward the complainant's race.
At the conclusion of the investigation of Claim 2, complainant was
provided with a copy of the report of investigation and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded
that complainant failed to prove that she was subjected to discrimination
as alleged. Specifically, the agency noted that management presented
evidence showing that the Controlled Substance Pharmacy Technician (White)
(C3) is the only pharmacy technician allowed to fill controlled medication
prescriptions in accordance with her Functional Statement; therefore,
C3 assists the Pharmacists/Residents working on Saturdays, as needed.
The agency noted that it is undisputed that C3's Functional Statement
includes controlled substance duties, but complainant's Functional
Statement does not allow her to fill prescribed controlled medications.
The agency also noted that while complainant asserts that she has
experience in filling narcotics prescriptions, she fails to dispute the
fact that her Functional Statement during the relevant time-frame did
not permit her to fill prescribed controlled medications.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R �� 1614.103,
106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We find that Claim 1 involves two unwelcome comments in one sentence
on one day unaccompanied by concrete agency action and does not allege
a personal loss or harm regarding a term, condition, or privilege of
complainant's employment. To the extent that complainant claims that
the matters identified in Claim 1 constitute harassment, we find that
complainant's claim still fails. Unless the conduct alleged is severe,
a single incident or group of isolated incidents will not be regarded
as a claim of discriminatory harassment. See Harris Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). Here, assuming the remarks were made,
they were not sufficiently severe or pervasive to create a hostile or
abusive working environment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). We note that the Commission
has held that the use of racial epithets or slurs in the workplace may
constitute harassment, and that a limited number of offensive slurs about
an employee's race or national origin may state a claim. See Yakubi
v. Department of the Army, EEOC Request No. 05920778 (June 4, 1993).
However, contrary to complainant's assertions, the "Three Stooges" and
"Three Musketeers" comment is not objectively viewed as a racial epithet
or slurs. Therefore, the agency properly dismissed Claim 1 for failure
to state a claim.2
Regarding Claim 2, to prevail in a disparate treatment claim such as this,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We find that the agency presented legitimate, non-discriminatory
reasons for its employment action which complainant did not show to
be pretext for discriminatory animus. Specifically, the agency noted
that management presented evidence showing that the Controlled Substance
Pharmacy Technician (White) (C3) is the only pharmacy technician allowed
to fill controlled medication prescriptions in accordance with her
Functional Statement; therefore, C3 assists the Pharmacists/Residents
working on Saturdays, as needed. The agency noted that it is undisputed
that C3's Functional Statement includes controlled substance duties, but
complainant's Functional Statement does not allow her to fill prescribed
controlled medications. The agency also noted that while complainant
asserts that she has experience in filling narcotics prescriptions,
she fails to dispute the fact that her Functional Statement during the
relevant time-frame did not permit her to fill prescribed controlled
medications. Accordingly, the preponderance of the record establishes
that C3 was the only pharmacy technician at the relevant time frame who
was available to fill controlled medications on Saturdays. Complainant
has adduced insufficient evidence to support her assertion that this
explanation is merely a pretext for discrimination. Accordingly, she
has not established that discrimination occurred as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the FAD.
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 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), 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
June 17, 2009
Date
1 S1 testified that she did not remember making this statement but
if she did it was not intended to be offensive or directed toward the
complainant's race.
2 We note that the Commission previously vacated and remanded the
agency's dismissal of C2's claim of harassment, holding that the agency
improperly fragmented a complaint which included three claims in addition
to the "Three Stooges/Three Musketeers" remark cited by complainant.
The Commission held that when considered together and assumed to be
true, the four claims raised by C2 were sufficient to state a viable
claim of harassment. See Jones v. Department of Veterans Affairs,
EEOC Appeal No. 0120073336 (April 18, 2008). We distinguish Jones from
the present case in that the complainant in Jones alleged numerous
detailed incidents of harassment sufficient to create a pattern of
conduct, whereas complainant herein alleged only one specific incident
of harassing behavior.
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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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