0120142408
08-11-2016
Terrie M.,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
Terrie M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142408
Hearing No. 450-2013-00306X
Agency No. 200305492013100441
DECISION
On June 17, 2014, Complainant filed an appeal from the Agency's May 16, 2014, final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a physician at the Agency's Medical Center facility in Dallas, Texas.
On February 12, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Indian), sex (female), age (43), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when she was subjected to harassment. In support of her claim of harassment, Complainant alleged that the following events occurred:
1. In April 2012, the Chief of Medical Service (Chief) refused to allow the Complainant to interview for the position of Hospitalist Section Chief;
2. From April 2012 through September 25, 2012, Complainant's coworker physician (Staff Physician) increased the number of hours Complainant had to work and increased the number of patients she was required to see;
3. On May 21, 2012, the Chief intimidated Complainant, told her she had no leadership experience, brushed his arm on her white coat, pushed her out of his office and threatened to call the VA police on her;
4. On July 21, 2012, the Staff Physician put his finger in the Complainant's face and stated: "You are so full of it, you complained, and you can go to the top. I am not like you. I am the chief." He then recommended the Complainant receive disciplinary action;
5. On August 16, 2012, the Human Resources Specialist (HR Specialist1) informed Complainant that her employment status was changed from permanent to temporary;
6. On August 21, 2012, Complainant was not selected for the position of Hospitalist Section Chief, Vacancy Announcement No. AH-12-DTH-63212; and
7. On September 11, 2012, the Chief issued the Complainant notice that she would be terminated from her position as Staff Physician, GS-15, effective September 25, 2012.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on April 1 and 2, 2014, and issued a decision on April 28, 2014.
Based on the record and the hearing testimony, the AJ made findings of fact. The AJ noted that Complainant was hired in the Geriatrics Extended Care unit of the Agency's facility in 2010, with duty hours from about 8 a.m. to 4 p.m. At that time, she was not a citizen but subsequently obtained her citizenship while in this position. In January 2012, Complainant applied for and was selected for a position in the Hospitalist Section which required night coverage on a rotating basis. The AJ noted that Complainant was made aware that the Hospitalist position involved flexibility with 12 hour shifts working seven days on and seven days off. At the time, Complainant was assigned the Hospitalist position as a Title 38 position which is an appointing authority for individuals who are not U.S. citizens. In March 2012, the Agency posted the announcement for the Chief of the Hospitalist position. Complainant applied for the position and was referred to the selecting official for consideration.
Complainant informed the Agency that she should be converted to permanent status based on her U.S. citizenship status. The AJ noted that the regulations provide for such a conversion, and a Professional Standards Board must convene to approve the conversion. However, despite the regulatory requirement of the approval of a Professional Standards Board, an HR Specialist (HR Specialist 2), who was contacted by Complainant, had converted her and five other employees without such approval to permanent status in April 2012. Complainant's conversion was dated January 15, 2012, listing her with a two-year probationary period. The AJ indicated that HR Specialist 2 was disciplined for the erroneous conversions.
In about March or April 2012, Complainant complained to the Chief about being required to work the night shift and informed him that she would be applying for the Chief Hospitalist position. In May 2012, Complainant inquired about her application and the Chief informed her that she would not be selected, nor had any selection been made. Complainant contacted HR Specialist 1 about the position. On May 29, 2012, Complainant and others were interviewed for the position of Chief Hospitalist. Complainant believed she met all the qualifications for the position and was not aware of the other candidates. As such, she felt that she should be selected for the position. Complainant continued to send emails from May, June and July 2012, regarding the position. Complainant believed that the Staff Physician was prohibited from applying due to his citizenship.
On July 21, 2012, Complainant believed that she was given additional patients by the Staff Physician and asked him why she was given them instead of him seeing the patients. She indicated to him that she would not see any additional patients. At that point, he pointed his finger in her face and said, "You are full of it, you complain." Complainant went and complained to the physician in charge. The Chief ordered an investigation into the situation.
Also in July 2012, Complainant sent an email to management regarding the appointments of the Staff Physician and others as a "betrayal of the U.S. government." Her colleagues learned of the email and were upset. The Chief responded to Complainant's email stating that they were investigated her complaints and auditing records. In August 2012, Complainant emailed about the Chief Hospitalist position, asserting that the Staff Physician was not a citizen and that she was ready and willing to accept the position. She asserted that she should be confirmed for the promotion. Management responded that a final selection had not been made on the position in question.
Finally, on August 17, 2012, Complainant was notified that she had not been selected for the Chief Hospitalist position and believed the Staff Physician was selected. In response, Complainant emailed the Chief stating that since the Staff Physician was not a citizen, he did not qualify and she was "looking forward to the position." The Chief testified at the hearing that he did not select Complainant because she did not have any Hospitalist leadership experience and because of her behavior. He noted that she complained about not wanting to work nights, lacked interpersonal skills, did not accept leadership, was unwilling to follow orders, was disruptive to staff and had no experience as a manager.
HR Specialist 1 noticed that Complainant and the other employees had been improperly converted to permanent and notified the Chief of the incorrect status. Complainant was converted back to the Title 38 status. On August 16, 2012, Complainant received a phone call from HR Specialist 1 indicating the change in status.
On September 11, 2012, Complainant met with the Chief who terminated her effective September 25, 2012.
Based on these findings, the AJ determined that Complainant failed to show that she was subjected to a hostile work environment. Furthermore, the AJ noted that Complainant failed to establish that the alleged harassment occurred because of her race, national origin, sex, age, and/or protected EEO activity. The AJ found that management's actions were in response to Complainant's behavior which began immediately as she was hired to work in the Hospitalist section. As such, the AJ concluded that Complainant failed to establish that she had been subjected to harassment in violation of the ADEA and/or Title VII.
The AJ then turned to Complainant's claim of discrimination regarding the termination. The Chief testified that, based on Complainant's behavior since she began working in the section, he decided to terminate her employment. The AJ noted that Complainant did not dispute her actions that were cited as reasons for her termination. Complainant asserted that she did not behave inappropriately. However, the AJ found that, based on the evidence presented, that the Agency had justified its reasons for Complainant's termination. Furthermore, the AJ held that Complainant failed to produce any evidence to show that the termination occurred based on her race, national origin, sex, age, and/or EEO activity. Therefore, the AJ concluded that Complainant failed to establish that she was subjected to discrimination when she was terminated effective September 25, 2012.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to harassment as alleged.
This appeal followed. On appeal, Complainant asserted that the Chief pre-selected the Staff Physician for the Chief Hospitalist position. She also argued that she was subjected to discriminatory harassment. Finally, she asserted that the overwhelming evidence in the record shows she was subjected to discrimination when she was terminated.
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).
Harassment
It is well-settled that harassment based on an individual's race, sex, national origin, age, and/or prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on race, sex, national origin, age, and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case because of her race, national origin, sex, age and/or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Upon review, we find that the record supports the AJ's decision determining that Complainant failed to show that the alleged actions were sufficient to constitute a hostile work environment or that the events alleged occurred because of her protected bases. Therefore, we find that the AJ properly concluded that Complainant had not demonstrated that she had been subjected to unlawful harassment based on her race, national origin, sex, age and/or prior EEO activity.
Disparate Treatment - Non-selection and Termination
In addition, Complainant alleged in her EEO complaint that she was subjected to disparate treatment. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We note that Complainant alleged disparate treatment when she was not selected for the Chief Hospitalist position in question and terminated from the Agency. Complainant asserted that the Staff Physician was pre-selected for the position in question. Upon review of the record, we find that substantial evidence supports the AJ's conclusion that Complainant failed to prove that the Agency pre-selected the Staff Physician in a discriminatory manner.2 Further, Complainant failed to demonstrate that the Chief made his selection based on discriminatory factors. As to the termination, we find that the record supports the AJ's findings and conclusions that the Chief provided legitimate, nondiscriminatory reasons for the termination decision which Complainant failed to show was pretext. Accordingly, the Commission finds that the AJ properly held that Complainant failed to show that the Agency's action was motivated by a discriminatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's adoption of the AJ's decision finding no discrimination.
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 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 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 11, 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.
2 We note that while evidence of pre-selection or favoritism may act to discredit an agency's explanation for its selection, pre-selection alone does not violate Title VII or ADEA when it is based on the qualifications of the selectee and not some basis prohibited by Title VII and/or ADEA. Goostree v. State of Tenn., 796 F.2d 854, 861 (6th Cir. 1986). In the instant matter, Complainant offered no persuasive evidence that pre-selection, if it occurred, was based on a discriminatory factor.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120142408
2
0120142408