0120141701
07-21-2016
Cathy 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
Cathy M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141701
Hearing No. 520-2012-00187X
Agency No. 200H-01AL-2011103698
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 30, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
On June 20, 2010, Complainant was hired as a Contract Specialist at the Agency's Veterans Affairs Boston Healthcare System, Brockton, Massachusetts campus, subjected to a probationary period.
On June 30, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of national origin (Italian) and disability when2:
1. from April 29, 2011 to June 14, 2011, her requests to earn compensatory time were not entirely approved; and compensatory time earned was not listed correctly on payroll and VISTA records which resulted in the forfeiture of earning compensatory time;
2. on May 8, 2011, she was informed by Fiscal Service that she owed health insurance premiums;
3. on May 19, 2011, her supervisor cancelled her attendance to participate in the "Cost and Price Analysis of Lease Proposals" training scheduled from May 23, 2011 to May 27, 2011;
4. on May 19, 2011, she received a counseling letter from her supervisor; and
5. on June 10, 2011, she was terminated during her probationary period.
After an investigation of the claims, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. Complainant responded in opposition to the Agency's motion. On July 23, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Regarding claim 1, the AJ noted that Complainant's supervisor stated that the reason there was a delay of approving Complainant's Compensatory Time (CT) request for travel to training in Maryland on March 23-25, 2011 and April 4-8, 2011 was because the paperwork was incomplete. Specifically, the supervisor stated that she advised Complainant on several occasions to correct the leave forms and resubmit them.
The AJ noted that an example of the errors that were in Complainant's forms was that she was claiming CT for time that was part of her normal tour of duty and had already been paid for the time. The AJ further noted that on May 23, 2011, the revised forms for the training trips were resubmitted and signed by the supervisor. On June 8, 2011, the revised forms were returned to Complainant and the timekeeper. Complainant did not request to use her approved CT between June 8, 2011 and her termination date of June 10, 2011. The AJ noted that according to the Agency's CT policy, it states "upon separation from the federal government, (retirement, resignation, etc) or upon transfer to another government agency, an employee's unused balance of compensatory time off for travel will be forfeited."
Regarding claim 2, the AJ noted that the Fiscal Service informed Complainant that she owed health insurance premiums because Complainant's Social Security number was inadvertently transposed but her insurance premiums were not deducted from her pay. The AJ further noted that the error was corrected.
The record reflects that according to Complainant's supervisor, she stated that while she had no role in Complainant being notified of owing health insurance premiums, Complainant worked with the Human Resources Specialist and two Payroll technicians to resolve the matter. The supervisor further stated that it was her understanding that the final outcome was there was a voluntary repayment agreement between Complainant and the Agency.
Regarding claim 3, the AJ noted that on May 19, 2011, the supervisor cancelled Complainant's approved request to participate in the "Cost and Price Analysis of Lease Proposals" training scheduled from May 23, 2011 to May 27, 2011 because of her repeated conduct of working after hours and overtime without permission, in violation of the Agency's policy. For instance, the AJ noted that on May 15, 2011, Complainant worked 7 hours of unauthorized overtime and another hour of unauthorized overtime on May 16, 2011, despite warnings and counseling from the supervisor not to work unauthorized overtime.
Regarding claim 4, the AJ noted that the supervisor stated that on May 19, 2011, she issued Complainant a letter of counseling because she repeatedly worked extra hours without approval despite being told it was a violation of Agency policy. The AJ noted that the supervisor also stated that Complainant "works 3 hours of unauthorized time after hours...[Complainant] then worked additional unauthorized CT/OT on May 15th (7 hours), May 16th (30 minutes)."
Further, the AJ noted that the supervisor stated that Complainant "has demonstrated repeatedly that she did not feel she needed to follow the policy governing working OT/CT. Due to the blatant disregard for the policy and directions about requesting OT/CT before working it was determined a written counseling letter needed to be provided."
Regarding claim 5, the AJ noted that on June 10, 2011, Complainant was terminated during her probationary period for failure to follow instructions. Specifically, the AJ noted that shortly after Complainant was issued the May 19, 2011 letter of counseling regarding unauthorized CT, she requested 1 hour of CT to complete her work. The AJ noted while the supervisor approved Complainant's request for 1 hour, Complainant proceeded to work 2 hours instead. Furthermore, the supervisor stated that she notified Human Resources that Complainant worked unauthorized CT again after receiving the May 19, 2011 counseling letter and Human Resources began the paperwork to terminated Complainant. Moreover, the supervisor stated that Complainant's national origin and disability were not factors in her decision to terminate her during her probationary period.
With respect to Complainant's allegation that she was terminated because she volunteered her free time to help other team members and because she was a threat to her supervisor since she had more experience than her, the AJ found Complainant offered no evidence in support of her assertions.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
Complainant, on appeal, argues that she was "wrongfully misled during the discovery process that took place shortly after I was wrongfully discriminated against during my employment at the Department of Veterans Affairs on June 10, 2011. I was and still have been treating at the VA Medical Center in Brockton...I was wrongly medically diagnosed from the VA doctors for lack of sleep and back discomfort, around March of 2010..."
Further, Complainant states that she kept asking for a hearing date but her representative "reported he never received one. I was not notified via email or email. The federal authorities confirmed my e-mail was hacked into along with all my online accounts, my home where I was living in was broken into......we went through a painful discovery process and at the moment that I could defined my rights, I was not giving the opportunity."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. We have carefully reviewed the record, as well as the arguments presented on appeal as noted above. However, we conclude that Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.3
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.4
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
July 21, 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 For ease of reference, the Commission has re-numbered Complainant's claims as claims 1-5.
3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
4 On appeal, Complainant does not challenge the November 1, 2011 partial dismissal issued by the agency regarding seven other claims. Therefore, we have not addressed these issues in our decision.
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