0120110982
05-23-2011
Stephanie D. Wilkerson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Stephanie D. Wilkerson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110982
Agency No. ARCARSON10JAN00260
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency’s decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant
was employed as a Nurse, at the Agency’s Evans Army Community
Hospital, Medical Management Division in Fort Carson, Colorado.
Report of Investigation (ROI), at 1. Believing that she was a victim
of discrimination, Complainant sought EEO counseling and subsequently
filed a formal complaint.
Complainant alleges that she was subjected to discrimination on the
bases of race (African-American) and in reprisal for prior protected
EEO activity when:
1. On January 8, 2010, the Injury Compensation Program Administrator
(ICPA) contacted Complainant’s doctor’s office informing her that
Complainant’s Workers’ Compensation claim was closed and canceled
Complainant’s doctor appointment scheduled on January 18, 2010.
2. In February 2010, the ICPA requested, obtained, maintained
and disseminated files containing her medical information without
authorization.1
At the conclusion of the investigation, Complainant received a copy of
the investigative report. Additionally, the Agency informed Complainant
of her right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
More than thirty calendar days elapsed with Complainant failing to
either request an EEOC hearing or a final decision from the Agency.
Therefore, the Agency issued a final decision on the merits of the
complaint based on the record. On November 3, 2010, the Agency issued
its decision concluding that it asserted legitimate, nondiscriminatory
reasons for its action, which Complainant failed to rebut. Thereafter,
Complainant filed the instant appeal.
On appeal, Complainant disputed the conclusions found by the
Agency investigator. Complainant’s Appeal, at 1. In response to
Complainant’s appeal, the Agency argued that Complainant failed to
establish a prima facie case of discrimination or reprisal and failed to
rebut the Agency’s evidence of non-discriminatory action. Agency’s
Brief in Opposition to Complainant’s Appeal, at 1.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject
to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See EEOC Management Directive 110, Chapter 9, § VI.A. November 9,
1999) (explaining that de novo standard of review “requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC
“review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and … issue its
decision based on the Commission’s own assessment of the record and
its interpretation of the law”).
Upon review, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. With respect to claim 1,
the ICPA stated that she believed that she initiated the call, but
could not recollect if she called Complainant’s doctor’s office
on January 18, 2010. The ICPA said that she received the Department
of Labor (DOL) letter in mid-January 2010, which indicated that there
was a proposal that Complainant’s claim was going to be closed.
The ICPA asserted that she spoke with the Office Coordinator (OC) in
Complainant’s doctor’s office. The ICPA claimed that she only told
the OC that there was a proposal pending that Complainant’s claim
was going to be closed, not that it was closed. The ICPA articulated
that she does not call and ask for medical information and that she had
no control as to whether Complainant’s doctor’s office had signed
a release from Complainant allowing the information to be released.
The ICPA stated that the OC said that there was a release on file for
Complainant. The ICPA acknowledged keeping files on Workers' Compensation
claims. The ICPA further stated that managers and supervisors could not
keep medical information on employees. The ICPA said that it was her
responsibility as the ICPA to maintain injury compensation case files in
accordance with Department of Defense instructions. The ICPA denied ever
representing herself as working for Office of Workers’ Compensation
Programs (OWCP); rather, she informed Complainant’s doctor’s office
that she was a representative of the Agency at Fort Carson, Colorado.
ROI, at Exhibits F-7 and F-10.
As to claim 2, the ICPA denied requesting medical information only on
African-Americans. The ICPA said that she requested medical information
from Complainant’s doctor’s office on three Caucasian patients in
the past six months. The ICPA claimed that she only requests medical
information on employees not assigned as a field nurse. The ICPA
asserted that the field nurse advices her on the findings of any visits to
the doctor. The ICPA argued that Complainant was not assigned to a field
nurse at the time of the disputed actions. The ICPA articulated that
she has not requested medical information on Field Nurse A because she
was already assigned a field nurse. The ICPA stated that she requested
medical information monthly. The ICPA said that she requested medical
information to determine medical restrictions to be considered in an
individual's performance of their duties. The ICPA reported that she
currently handles 300 to 400 claims for the CPAC Director and its tenants
of which she has requested documentation on approximately 100. The ICPA
acknowledged discussing information with the Civilian Personnel Advisory
Center (CPAC) Director, her supervisor, regarding Complainant's claim.
The ICPA mentioned that the CPAC Director requested information to
respond to electronic mail messages that Complainant sent her. The ICPA
asserted that only individuals having a direct need to know discussed
Complainant's claim with the EEO Office in regards to this instant
complaint. The ICPA denied handling Complainant's Workers' Compensation
differently than others. The ICPA further denied discriminating against
or treating Complainant differently based on race or her participation
in EEO activity. ROI, at Exhibits F-7 and F-10.
After a careful review of the record and contentions on appeal, the
Commission finds that Complainant failed to rebut the Agency's articulated
legitimate, nondiscriminatory reasons it actions. Additionally, the
Commission finds that Complainant has failed to show by a preponderance
of the evidence that she was subjected to discrimination on the bases
of race or reprisal.
CONCLUSION
The Agency’s decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
May 23, 2011
__________________
Date
1 On May 14, 2010, Complainant submitted an electronic mail message,
stating that she was withdrawing religion as a basis of discrimination.
ROI, at Exhibit F-7.
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0120110982
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013