Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 15, 2015

0120132966 (E.E.O.C. Jan. 15, 2015)

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
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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).
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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

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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

Date
January 15, 2015