Wyonna K. Daniels, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 14, 2009
0120083635 (E.E.O.C. May. 14, 2009)

0120083635

05-14-2009

Wyonna K. Daniels, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Wyonna K. Daniels,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120083635

Agency No. 2004-0558-2007103450

DECISION

Complainant filed an appeal from the agency's July 23, 2008 final

decision concerning her equal employment opportunity (EEO) complaint

alleging employment discrimination in violation of 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. 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 the events giving rise to this complaint, complainant

worked as a Nurse I at the agency's facility in Durham, North Carolina.

On September 28, 2007, complainant filed an EEO complaint alleging that

she was discriminated against on the bases of disability (scoliosis),1

age (55 years old at the time of the incident), and in reprisal for

prior protected activity.

By letter dated December 14, 2007, the agency determined that

complainant's complaint was comprised of the following claims:

Whether complainant was subjected to harassment when:

1) During August 2007, complainant's supervisor sent an e-mail to everyone

on evening shift regarding using common sense when assigning beds and

recliners to guests when they are staying overnight.

2) During April 2005, while working the night shift alone without any

help from coworkers the night manager was hateful toward complainant.

3) During February 2005, while on approved leave caring for a family

member complainant became sick and called and spoke with a supervisor

and she acted harsh and cold toward her.

4) During October 2004, complainant e-mailed her manager pertaining to

work on the unit and she responded to complainant by saying, if you spend

more time working and less time socializing you could get more work done.

B) Whether complainant was treated in a disparate manner when on July

12, 2007, she was denied a promotion to a Nurse II position.

The agency dismissed claim (A) for failure to state a claim. The agency

stated that the alleged incidents do not rise to the level of an

actionable hostile work environment claim. However, the agency accepted

claim (B) for investigation.

At the conclusion of the investigation for claim (B), 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 agency

found no discrimination with respect to claim (B). The agency found

that complainant failed to establish a prima facie case of retaliation

and/or age or disability discrimination. The agency further found that

it articulated legitimate, nondiscriminatory reasons for its actions.

Specifically, the agency stated that the Nurse Professional Standards

Board (NPSB or Board) found that complainant did not meet the nine

"dimensions" for a Nurse II position. The agency found that complainant

failed to establish that the agency's articulated reason for its action

was pretext for discrimination and/or retaliation.

CONTENTIONS ON APPEAL

On appeal, complainant asserts that the agency's final decision finding

no discrimination is improper. Specifically, complainant states that

she has been denied a promotion at least five times.

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

the 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").

Claim (A)-Partial Dismissal-Hostile Work Environment Claim

The Commission finds that the agency properly dismissed claim (A)

for failure to state a claim. In Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of

Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment

is actionable if it is sufficiently severe or pervasive to alter the

conditions of the complainant's employment. The Court explained that

an "objectively hostile or abusive work environment [is created when] a

reasonable person would find [it] hostile or abusive:" and the complainant

subjectively perceives it as such. Harris, supra at 21-22. Thus, not

all claims of harassment are actionable. In the instant matter, we do

not find that the alleged incidents set forth in complainant's complaint

are sufficiently severe or pervasive to set forth an actionable hostile

work environment claim.

Claim (B)-Denial of Nurse II Promotion

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). She

must generally establish a prima facie case by demonstrating that

she 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).

Assuming arguendo that complainant established a prima facie case

of discrimination and/or retaliation, the Commission finds that the

agency articulated legitimate, nondiscriminatory reasons for its action.

The record contains an affidavit from the Chair of the Board (C1) who

denied complainant's reconsideration request with respect to her promotion

to a Nurse II position. Therein, C1 states that the first Board found

that complainant met four out of the nine dimensions to qualify for

a Nurse II position; however, the first Board found that five of the

dimensions were not met at the Nurse II level.2 C1 further states that

when the second Board met, after complainant sought reconsideration,

"we accepted what the first Board said, and gave her credit for those

four [dimensions], and then reviewed the remaining five once again. And

of those five, one of those five dimensions was considered to be met, so

they gave her credit for that. So that makes a total of five out of nine.

But the other four were not met, and therefore, the recommendation was

not to promote."

The record also contains a memorandum to complainant from the Associate

Director of Nursing Programs (A1) dated July 6, 2007. Therein, A1

states that the NPSB met to reconsider her qualifications for a Nurse

II position and that the "NPSB accepts previous board recommendations

[that complainant] meet[s] dimensions A and E-G. [Complainant meets] B

upon this review. [Complainant does] not meet the Qualification Standards

for promotion to Nurse II in the following areas: C, D, H, and I."3

While complainant asserts that she meets all of the dimensions and

should be promoted to a Nurse II position, upon review of the record,

we find that complainant failed to establish, by a preponderance of

the evidence, that the agency's articulated reasons for its action was

pretext or discrimination and/or retaliation.4

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

final decision finding no discrimination.

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

May 14, 2009

__________________

Date

1 For purposes of analysis only, we assume, without finding, that

complainant is an individual with a disability.

2 The record reflects that the nine dimensions for a Nurse II position

are A) Practice; B) Quality of Care; C) Performance; D) Education/Career

Development; E) Collegiality; F) Ethics; G) Collaboration; H) Research;

and I) Resource Utilization.

3 The record also reflects that various members of the NPSB stated that

they did not know the identity of the individuals when reviewing whether

their qualifications met the level of a Nurse II position. Therefore,

they were not aware of complainant's age, alleged disability, and/or

prior protected activity at the time she was not recommended for a

promotion to a Nurse II position.

4 While complainant on appeal asserts that she was denied a promotion at

least five times, the Commission will only address herein the accepted

claim, the July 2007 denial of a promotion.

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0120083635

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083635