Teal D. Amaro,
Complainant,

v. 

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120102056

Hearing No. 530-2007-00202X

Agency Nos. 2004-0613-2006101078
                      2004-0631-2007103951

DECISION

On April 5, 2010, Complainant filed an appeal from the Agency's March 30, 2010, 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 Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.  The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).  For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Long Term Care In-Patient Social Work Supervisor at the Agency's Medical Center in Martinsburg, West Virginia. On March 8, 2006, Complainant filed her first EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female) and reprisal for prior protected EEO activity under Title VII when she was subjected to a hostile work environment.  Complainant amended her complaint on June 1, 2006, August 3, 2006. September 20, 2006 and October 20, 2006.  In support of her claim of harassment, Complainant alleged numerous events committed by her Chief, the Hospital Director, her supervisors, her co-workers and her subordinate employees.  Some examples of her claim of harassment included the following events:

1. On an ongoing basis, male supervisors are not required to carry inpatient workloads, however, Complainant was in addition to her supervisory and administrative duties;
2. Management requires male supervisors to provide coverage for male supervisors and female supervisors to provide coverage for female supervisors;
3. All three female inpatient supervisors (including Complainant) are required to carry a full inpatient caseload, however, the two male supervisors are not similarly required to do so nor are they required to work off their position descriptions;
4. Male supervisors do not input their own workload, and the statistics used are deceiving;
5. In February 2005, management failed to support Complainant's attempt to reclassify the position description (from GS-11 to GS-12) for two female employees whom she supervised;
6. On December 23, 2005, management required Complainant to provide coverage for the Acute Care supervisor while the male supervisors do not have the burden of additional assignments;
7. Long Term Care and Acute Care supervisors do not have to participate in a reciprocal coverage plan.  On January 6, 2006, female Long Term Care supervisors were not allowed input into decisions regarding participation in coverage plans;
8. On March 7, 2006, the Service Chief met with Complainant regarding workload and offered a compromise, volunteered by the male social worker, which in effect, did little to ease the actual workload burden of the female social workers;
9. On March 17, 2006, Complainant learned that management determined not to convene an outside audit of the Social Work program and the workload distribution issue, but rather convened an internal audit and placed in charge an individual the complainant has previously filed EEO complaints against;
10. On April 3, 2006, Complainant's leave request was denied;
11. Complainant believed that male social workers are allowed to not see patients during the course of their every day routine workload while female social workers are not allowed coverage for necessary absence;
12. In May 2006, management allowed Medical Service to recruit and hire an additional GS-12 Social Worker, with the resultant impact on Long Term care;
13. On May 30 and 31, 2006, instead of providing coverage for Social Work on the Medical Service Floor, management, without consent or discussion with the Long Term Care supervisor, ordered her staff to provide the patient coverage;
14. On August 8, 2006, Complainant continued to work late because the facility is still understaffed. Social Workers will lose another staff member and will be required to perform an even greater disproportionate work load;
15. On August 28. 2006, a male coworker lied about patient workload, thus negatively impacting female social worker's workload, and the male social workers are only asked to cover 8 days out of 31 days;
16. On August 28, 2006, there was a discussion about who inputs a male coworker's workload and the complainant believes the coworker is lying;
17. On August 28, 2006, a male coworker admitted he did 22 annual facility reviews and another male coworker appeared busy 7 days per month;
18. Complainant observed during the meeting that the male coworkers did not accrue or frequently request compensatory time or overtime because they were not overburdened by their workload;
19. On August 28, 2006, a male coworker made a suggestion as to how the female co-workers could provide coverage for each other, and he asked about the status of his previously requested leave;
20. Although it appeared that both inpatient (female) and community (male) social workers took equal amount of coverage duty, the coverage fell unequally due to the lack of adequate full time positions to cover the original workload;
21. The Medical Center response to the staffing pattern offered little relief nor does it address the needs of the Long Term Care inpatient social work staff.
22. In February 2006, Complainant's Service Chief stopped speaking to her which caused a deterioration in her ability to carry out work assignments and patient care;
23. On February 10, 2006, the complainant's Service Chief began communicating with her through her supervisor and via email which was a departure from her customary manner of communication with the complainant;
24. On February 10, 2006, Complainant's supervisor's demeanor changed from her previous manner to that of intimidation to the point Complainant felt uncomfortable;
25. On February 10, 2006, during a facility-level mediation session, the Service Chief continually praised Complainant's male counterpart and asked Complainant to agree with her assessment;
26. On February 24, 2006, a second facility-level mediation session was scheduled but Complainant was told it was cancelled.  Complainant later learned the session was held without her;
27. On March 16, 2006, facility-level mediation was scheduled but Complainant was told it was cancelled. Complainant later learned the session was held without her;
28. During the week of April 12, 2006, Complainant learned her Service Chief made comments to Complainant's coworkers regarding the quality of her work, which "demoralized" Complainant;
29. On April 27, 2006, Complainant's Service Chief refused to support her request to work from home without seeing patients, compared social workers to physicians and then told Complainant not to compare social workers to physicians, agreed that social workers needed more coverage then denied that social workers needed more coverage, and offered no resolution or coverage in the future;
30. On April 27, 2006, the complainant's Service Chief admitted she made "derogatory statements" about the complainant and added that other social workers are "more skillful . . . in comparison;"
31. On August 8, 2006, Complainant complained to Service Chief about the Service Secretary. The Service Chief ended the discussion "abruptly" and stated "end of discussion";
32. On August 8, 2006, the Service Chief failed to address or be concerned with the manner in which the Service Secretary was communicating with Complainant's subordinate staff;
33. On August 8, 2006, the Service Chief asked Complainant if she agreed with whether or not the Service Secretary could use a bigger office:
34. On August 8, 2006, at the close of the meeting, the Service Chief asked Complainant if she felt better about things and stated she did not want Complainant to feel stressed or anxious. 
35. On March 1, 2006, Complainant's supervisor ordered Complainant to take unwarranted disciplinary action against one of her employees;
36. On March 1, 2006, Complainant met with the Hospital Director regarding an unwarranted disciplinary action against one of her subordinate employees. During the meeting, the Director interrupted Complainant anytime she spoke; became hostile; intimidating and threatening during her attempt to leave his office. The Director blocked her exit from his office and shouted at her several times, pointed his finger at her while hollering, stood close to her so she could not leave the office until he finished hollering;
37. On March 1, 2006, the Hospital Director again met with Complainant, along with her supervisor, and the Chief of Staff.  During the meeting, the Director accused, demeaned, berated and humiliated Complainant;
38. On March 24, 2006, the Hospital Director told the complainant's subordinate employee that the Hospital Director was concerned and did not agree with how Complainant handled the employee's case, and accused Complainant of breach of patient and employee confidentiality to the employee she supervises; 
39. On April 18, 2006, Complainant's supervisor left a yellow sticky note on the outside of her door which alerted people that "something is up," and o that date, the Supervisor gave Complainant a written counseling of the event for which she had previously received a verbal counseling.  
40. On April 28, 2006, the complainant learned the Human Resources Specialist (HR Specialist) contacted the Workers Compensation specialists on April 21, 2006, and informed them he would obtain witness statements regarding Complainant's Worker's Compensation claim.  
41. On June 16, 2006, the Supervisor's secretary paged Complainant while she was home on sick leave for a non-emergent matter;
42. On June 17, 2006, the Service Secretary made an untrue and inflammatory addendum to Complainant's patient note in a patient health record. When Complainant spoke to the Supervisor about the incident, her supervisor did not share Complainant's perspective of the event and it appeared to Complainant that the matter was minimized;
43. On August 8, 2006, the Service Secretary failed to discuss her plans regarding social work service offices with Complainant;
44. On August 8, 2006, the Service Secretary told Complainant in front of the Service Chief, that Complainant could bring concerns directly to her. Complainant felt as if this was an order;
45. On August 8, 2006, the Service Secretary told Complainant "I am leery of you". The Service Chief did not react to this comment and appeared to support the Secretary and not Complainant; 
46. Since August 8, 2006, and continuing, the Service Secretary has not spoke to a member of Complainant's subordinate staff.
47. On March 14, 2006, the Service Chief called an impromptu meeting where Complainant was subjected to verbal insults by the male social workers;
48. On March 15, 2006, a male social worker called Complainant a "schmuck;"
49. On March 16, 2006, a male social worker filed a union grievance against Complainant accusing her of assignment of duties, unprofessional conduct and constant harassment, as a tactic to intimidate and create a hostile work environment;
50. A male coworker made a derogatory and cruel statement at the conclusion of the staff meeting; and,
51. A male coworker was intimidating Complainant when he requested management to provide him keys and access to her office.
52. On April 3, 2006, Complainant's telework approval was denied.  Complainant indicated she requested telework as a form of reasonable accommodation based on an unspecified disability;
53. On July 18, 2007, another Supervisor (Supervisor 2) mandated that Complainant be the only social worker to cover the ER for mental health;
54. On July 23, 2007, Supervisor 2 assigned the 4th floor patients to Complainant who already had a larger work load than any other social work supervisor;
55. On August 31, 2007, Supervisor 2 ordered Complainant to provide complete and entire coverage for a co-worker's maternity leave which Complainant believed in an unfair work assignment; 
56. From July 2007 through August 2007, Supervisor 2 denied Complainant's requests for compensatory time; and,
57. On September 13, 2007, and the week of October 1, 2007, Supervisor 2 placed Complainant on AWOL instead of continuation of pay (COP),

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 EEOC Administrative Judge (AJ).  Complainant timely requested a hearing and the AJ held a hearing on March 23, 2009, and issued a decision on March 12, 2010.  The AJ determined that Complainant failed to show that the alleged harassment occurred because of her protected bases.  Further, to the extent Complainant alleged disparate treatment; the AJ found that the Agency provided legitimate, nondiscriminatory reasons for its actions.  The AJ then held that Complainant failed to show that the Agency's reasons were pretext.  As such, the AJ concluded that Complainant did not establish her claim so discrimination.

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.  Complainant appealed asserting that the AJ erred in finding no discrimination.  Complainant also noted that the AJ failed to specifically address her claim of denial of reasonable accommodation.


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. (November 9, 1999).      

Complainant alleged that she was subjected to a hostile work environment based on her race, sex and in reprisal for protected activity.  It is well-settled that harassment based on an individual's sex, race and/or prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).  In order to establish a claim of  harassment under those bases, the 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 sex, race 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).  The harasser's 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).  Upon review of the record, we agree with the AJ's findings and conclusions that Complainant failed to show that the alleged events were because of her race, sex and/or prior protected activity.

Complainant also raised claims of disparate treatment due to work assignments based on her race, sex and retaliation.  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 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 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.  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.  U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dept. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dept. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dept. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).  Upon review of the record, we find that the AJ correctly held that the Agency provided legitimate, non-discriminatory reasons for its actions.  Further, the record also supports the AJ's finding that Complainant failed to establish that the Agency's reasons were pretext for discrimination.  

Finally, we note that Complainant alleged she was denied a reasonable accommodation in violation of the Rehabilitation Act.  Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9.  For the purposes of analysis, we assume Complainant is an individual with a disability.  29 C.F.R. § 1630.2(g)(1).

Complainant also must show that she is a "qualified" individual with a disability within the meaning of 29 C.F.R. § 1630.2(m).  We note that the discussion of "qualified" does not end at complainant's position.  The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m).   The record indicates that Complainant requested telework in order to get away from the alleged hostile work environment.  Complainant testified that she would have been able to continue to function in her position from home for a brief lime and see any patients in person who needed an inpatient meeting by coming in during off tour hours.  Complainant claimed that telework is not unusual for a social worker at the facility.  For example, she indicated she would get calls from home about problems and often has to meet with patients during off hours.  However, Service Chief testified at the hearing that the essential duties of Complainant's position as a supervisory social worker are providing patient care and her supervisory or lead social work activities. As such, the Service Chief determined that Complainant could not perform her duties while working from home.  Further, the record indicated that no other social worker worked from home due to the duties of the position.  In addition, the HR Specialist testified at the hearing noted that Complainant was a supervisor and that she could not perform her supervisory duties while teleworking.  Therefore, based on the record as a whole, we determine that teleworking would not have been an effective accommodation for it would not allow Complainant to perform the essential functions of her supervisory social worker position.  
                             

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 order adopting the AJ's finding of no discrimination.

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

September 14, 2010

__________________
Date

 
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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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