Marva Fretheim v. Department of Veterans Affairs 01A44531 March 24, 2006 . Marva Fretheim, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A44531 Agency No. 2004-0652-2002105217 Hearing No. 120-2003-00424X DECISION Complainant filed an appeal with this Commission concerning her complaint of unlawful employment discrimination. Complainant alleged that she was subjected to discrimination on the bases of race (African-American) and reprisal for prior EEO activity from September 20, 2002 to April 10, 2003,<1> when she was harassed in the following manner: On September 20, 2002, complainant received a memorandum from her supervisor, wherein her performance of duties as a nurse manager was criticized, she was assigned a preceptor<2> to evaluate her work performance, and she believes she was placed on a performance improvement plan (PIP). 2. On October 2, 2002, complainant received a letter from the Chief of Human Resources, informing her that the Local Union President could not serve as complainant's designated EEO representative and could not be present in any formal or informal meetings. 3. On October 9, 2002, complainant stated that her supervisor informed the Executive Vice President of the Local Union that complainant would be written up if she did not attend a meeting that had been cancelled. On December 12, 2002, complainant received a letter of written counseling dated December 6, 2002, in reference to her behavior and conduct. On December 12, 2002, complainant received a performance review memorandum dated December 6, 2002, from her supervisor, which indicated that complainant had not successfully completed her orientation period and extended complainant's orientation period for an additional thirty day period, until January 10, 2003. On February 12, 2003, complainant received a memorandum from the Associate Chief of Staff for Nursing, which placed complainant on a sixty day PIP. On March 18, 2003, complainant was informed by the Associate Chief of Staff of Nursing and her supervisor that she had failed her PIP and was told to step down as Nurse Manager or she would receive an unsatisfactory proficiency rating and subsequent administrative action. On March 24, 2003, complainant was required to meet with the Associate Chief of Staff of Nursing and her supervisor wherein management “insisted” that she provide a written choice as to whether she would accept an unsatisfactory proficiency rating and subsequent administrative action or step down as Nurse Manager and forfeit a two-step pay increase. On March 31, 2003, complainant was informed by the Associate Chief of Staff of Nursing that action would be taken against her if she did not provide written notice stating whether she would accept an unsatisfactory proficiency rating and substantive action or step down as nurse manager and forfeit a two-step pay increase. On April 9, 2003, complainant's request for sick leave was not granted, and she was informed by the staff's coordinator to contact her supervisor the next morning. On April 10, 2003, complainant contacted her supervisor, who questioned complainant about her length of illness, requested a note, and informed her that she would be marked Absent Without Leave (AWOL) if the requested documentation was not supplied. On April 13, 2004, an EEOC Administrative Judge (AJ) issued a decision without a hearing finding that there was no genuine issue of material fact in dispute, and concluded that complainant had not been discriminated against. Specifically, the AJ found the agency presented legitimate, nondiscriminatory reasons for its actions, which complainant failed to rebut. On May 20, 2004, the agency issued a decision finding no discrimination. The agency fully implemented the AJ's decision. Complainant now appeals from that decision. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. We find that the agency articulated legitimate, nondiscriminatory reasons for its actions. As to the claim of harassment, the agency noted that complainant's alleged discriminatory harassment consisted of the incidents as stated in claims 1 through 11. With reference to claim 1, complainant's supervisor stated that she set up a meeting between complainant and her staff who had complaints against complainant regarding work schedules on September 18, 2002. Complainant's supervisor said that she told complainant that she was going to be assigned a preceptor. Complainant's supervisor asserted that complainant admitted that she needed help in all areas. Complainant's supervisor asserted that on September 20, 2002, she gave complainant a checklist of Nurse Manager duties. Complainant's supervisor articulated that she also saw that complainant was signed up for Nurse Manager duties. Complainant's supervisor said that the assignment of a preceptor and the checklist of Nurse Manager duties would assist complainant in being able to function better in her new role as Nurse Manager. Complainant's supervisor stated that she issued complainant a memorandum outlining what was being done to assist complainant. Complainant's supervisor reported that the memorandum was not a PIP as complainant believed, but a memorandum detailing what complainant's supervisor was doing to assist complainant in better performing her duties. Complainant's supervisor asserted that complainant had only met her assigned preceptor. Regarding claim 2, complainant's supervisor argued that complainant was informed that the Union President could not represent complainant at the meeting because management felt that this was a conflict of interest if the Local Union President represented a non-union employee. In terms of claim 3, complainant's supervisor articulated that complainant asked her whether she would be considered insubordinate if she did not attend the scheduled meeting to discuss a complaint against complainant. Complainant's supervisor stated that she told complainant that there was a possibility that she would be considered as insubordinate if she did not attend the meeting. Complainant's supervisor reported that, on the day of the meeting, complainant appeared with the Executive Vice President of the Local Union. Complainant's supervisor indicated that complainant was present, but would not make a statement. With respect to claim 4, complainant's supervisor stated that she met with complainant on December 2, 2002, to discuss her performance and incidents of insubordination. Complainant's supervisor argued that, after this initial meeting, complainant failed to meet with her preceptor as instructed. Complainant's supervisor asserted that complainant's performance did not improve and she gave complainant a written counseling on December 12, 2002, that was dated December 6, 2002. Complainant's supervisor claimed that the written counseling addressed complainant's behavior and conduct. Regarding claim 5, complainant's supervisor said that, on December 12, 2002, she sent complainant a memorandum to advise complainant that she was unsuccessful thus far during her orientation period and that her orientation period was extended for 30 days. Complainant's supervisor stated that complainant was again reminded to seek her preceptor for guidance. Complainant's supervisor argued that complainant's 30-day orientation extension was extended for another 30 days, until January 10, 2003, because complainant did not seek assistance from her preceptor as instructed. Regarding claim 6, the Associate Chief of Staff of Nursing stated that complainant's supervisor came to her to discuss that complainant was not adjusting adequately to her new management position. The Associate Chief of Staff of Nursing reported that she and complainant's supervisor discussed the options and developed a plan to extend complainant's orientation. The Associate Chief of Staff of Nursing said that complainant had worked in community health nursing and that the transition to medicine/mental health may have been difficult. The Associate Chief of Staff of Nursing argued that she and complainant's supervisor felt that an experienced nurse manager could be beneficial in assisting complainant during her extended orientation. The Associate Chief of Staff of Nursing asserted that complainant had not been very cooperative in meeting with her designated preceptor. The Associate Chief of Staff of Nursing remarked that she placed complainant on a PIP on February 12, 2003. Regarding claims 7 and 8, complainant's supervisor stated that she met with complainant to discuss her PIP on March 18, 2003. Complainant's supervisor said that, on March 24, 2003, she, the Associate Chief of Staff of Nursing and complainant met again to discuss complainant's PIP. Complainant's supervisor reported that they discussed what complainant had not accomplished while on her PIP. Complainant's supervisor asserted that complainant had not completed one single item from the list of her PIP. Complainant's supervisor claimed that after she and the Associate Chief of Staff of Nursing evaluated complainant's performance, complainant stated that working two units was too much. Complainant's supervisor argued that complainant stated that she wanted the two units separated and complainant was informed that complainant could not make that decision. Complainant's supervisor said that she and the Associate Chief of Staff of Nursing suggested to complainant that complainant step down as Nurse Manager to Staff Nurse. Complainant's supervisor stated that complainant did not object to stepping down to a Staff Nurse position, but did not like the idea of going to the mental health unit. Complainant's supervisor reported that she asked complainant to speak with the Nurse Manager in mental health regarding the availability of shifts. Complainant's supervisor recalled that complainant asked about her proficiency rating. Complainant's supervisor stated that she told complainant that if complainant came out of her Nurse Manager's role, then complainant would not get an unsatisfactory rating because complainant performed satisfactorily as a Staff Nurse. Regarding claim 9, the Associate Chief of Staff of Nursing reported that she met with complainant on March 31, 2003, to let her know that she may receive an unsatisfactory proficiency report. The Associate Chief of Staff of Nursing said that she and complainant's supervisor discussed complainant's options, which included a staff position. The Associate Chief of Staff of Nursing asserted that she did not know why complainant felt that the events that took place were harassment to her. The Associate Chief of Staff of Nursing argued that complainant had received many complaints about complainant, which included sharing confidential information and problems completing the time schedules in a timely fashion. Regarding claim 10, complainant's supervisor stated that complainant went out sick on March 26, 2003. Complainant's supervisor reported that complainant was out for three consecutive days. Complainant's supervisor informed the office coordinator that, if complainant called, complainant should call back and speak with complainant's supervisor. Complainant's supervisor asserted that, when complainant called, it was during the night shift and therefore complainant's sick leave was denied. Regarding claim 11, complainant's supervisor argued that complainant was off work from March 26, 2003 to April 10, 2003. Complainant's supervisor said that she told complainant that if she brought in a physician statement that covered the days she was off on sick leave that she would grant her sick leave time. In summary, the AJ found that the actions alleged by complainant to be “harassing” were not sufficiently severe or pervasive so as to have unreasonably interfered with complainant's ability to perform her job. The Commission finds that complainant failed to rebut the agency's articulated legitimate, nondiscriminatory reasons for its actions. Moreover, complainant failed to show, by a preponderance of the evidence, that she was discriminated against on the bases of race or reprisal. Furthermore, complainant failed to show that the alleged harassing incidents, when considered together, constitute a hostile work environment. Regarding claim 2, we note that 29 C.F.R. §1614.605(c) provides that: In cases where the representation of a complainant or agency would conflict with the official or collateral duties of the representative, the Commission or the agency may, after giving the representative an opportunity to respond, disqualify the representative. By letter dated October 2, 2002, the Chief, Human Resources Management Service, informed the President, AFGE that it was proposing that the Union President could not represent complainant in an EEO matter “since it compromises [complainant's] impartiality in future dealings with the union regarding bargaining unit employees.” The Chief noted that complainant was a management official. The agency informed the Union President that she could respond to the proposal within 10 business days from receipt of the letter. The Chief also sent complainant a separate letter dated October 2, 2002, informing her of the agency's objection to having the Union President represent complainant. The Chief explained that having the Union President as complainant's representative would present a conflict of interest with complainant's duties and responsibilities as a Nurse Manager. By letter dated November 20, 2002, to complainant, the Chief Operating Officer noted that because complainant had changed representatives after the agency had objected to her prior representative, the agency was considering the matter of representation to be closed. The Commission finds that complainant was never ultimately denied a representative of choice for complainant, but that the agency only proposed such a denial pursuant to 29 C.F.R. §1614.605(c). To the extent that the agency may have denied complainant her choice of the Union President as her representative, we note that complainant has not shown that having the Union President as her representative would not conflict with complainant's duties. The agency's decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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 19848, Washington, D.C. 20036. 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 (S0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 March 24, 2006 __________________ Date 1 We have reordered and renumbered the allegations. These changes do not affect the outcome of our analysis. 2The record indicates that a preceptor, in this instance, was a mentor.