Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 15, 20150120132966 (E.E.O.C. Jan. 15, 2015) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120132966 Hearing No. 520-2013-00211X Agency No. 200H-0632-2012101837 DECISION On July 1, 2013, Complainant filed an appeal from the Agency’s June 17, 2013, 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. 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 Complainant worked as a Medical Support Assistant at the outpatient clinic in Northport, New York. On January 10, 2012, she was assaulted by a patient and had to take time off from work as a result of her ensuing injury. Investigative Report (IR) 86-87. On January 31, 2012, while still recovering at home, Complainant spoke with the Management Service Officer, her second- line supervisor (S2) and asked that she be reassigned to another work unit so that she would not have to be in contact with the patient who attacked her. IR 72-73, 87. S2 averred that she did not believe that moving within the facility would solve the problem, since the patient was able to go anywhere within its confines. IR 87-89. A transitional duty assignment form from the Office of Workers’ Compensation dated February 27, 2012, indicated that the Agency was attempting to find interim work that she could do until she recovered completely, but Complainant never signed the form. IR 128-29. Complainant returned to work on March 21, 2012. At a staff meeting held the week before, the Clinic Manager, Complainant’s immediate supervisor, reported to S2 that she had spoken to Complainant over the telephone to discuss her return, and that Complainant did not want to 0120132966 2 talk about the events that took place on January 10th . IR 89-92. S2 sent Complainant a request to release the police reports about the assault in an attempt to solicit information necessary to support Complainant’s transfer request. Complainant did not respond. IR 93-94, 136. Complainant filed an EEO complaint on May 21, 2012, in which she alleged that S2 discriminated against her on the basis of race (Black) by denying her request for a reassignment. Complainant and S2 agreed to mediate the matter, but in June 2012, a new Management Service Officer took over as Complainant’s second-line supervisor. IR 77-78. S2 averred that during the mediation, when Complainant requested a transfer to the Bay Shore Clinic, S2 informed Complainant that she was no longer in her supervisory chain and did not have the authority to approve the request. IR 97-98. No resolution was reached, and the processing of the complaint continued. 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision on May 30, 2013. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS To warrant a hearing on her disparate treatment claim, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether S2 was motivated by unlawful considerations of her race in the way in which she handled Complainant’s request to be transferred out of the outpatient clinic in Northport. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Evidence of unlawful intent takes the form of discriminatory statements or past personal treatment, comparative or statistical data, unequal application of Agency policy, or deviations from standard procedures without explanation or justification. See Hovey v. Department of Housing & Urban Development , EEOC Appeal No. 01973965, (Aug. 31, 2000). Apparently there was a serious communication gap between S2 and Complainant in terms of what Complainant was looking for and what S2 was able to do for her. S2 averred that she needed to obtain information about the assault in order to process Complainant’s transfer, and that Complainant neither completed the transitional duty assignment form nor responded to S2’s request that she authorize the release of the police reports. S2 further testified in her affidavit that she had spoken with Complainant’s new second-line supervisor, that the new supervisor agreed to process the transfer, and that it was her understanding that the new supervisor ultimately authorized Complainant’s transfer to Bay Shore. IR 98. While S2 might have handled the situation more carefully, the focus of this inquiry must remain on her motivation, regardless of whether her business judgment was correct. See Glass v. United States Postal Serv., EEOC Appeal No. 07A50068 (June 15, 2006). 0120132966 3 While Complainant contends, in vague and general terms, that she was treated differently than white employees who requested transfers, the only individual she identified as a comparator had received a promotion, and was therefore not similarly situated to her. IR 78, 95-96. Complainant has not presented any sworn statements from other witnesses or documents which contradict S2’s explanation of the events in question. Unsupported assertions are not sufficient evidence of illegal motive. Porter v. Department of the Navy , EEOC Petition No. 03800087 (January 14, 1981). We therefore find, as did the AJ, that Complainant failed to raise a genuine issue of material fact as to whether S2 had discriminated against Complainant on the basis of race in connection with her attempts to process Complainant’s request for a transfer. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 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). 0120132966 4 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 Actionâ€). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date January 15, 2015 Copy with citationCopy as parenthetical citation