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

Equal Employment Opportunity Commission

Sep 16, 2015

01-2013-0292-0500 (E.E.O.C. Sep. 16, 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. 0120130292

Hearing No. 451-2011-00039X

Agency No. 2003-0671-2010101259

DECISION

On October 19, 2012, Complainant filed an appeal from the Agency’s September 22, 2012
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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission
deems the appeal timely and accepts it for de novo review 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 Radiological Technologist at the North Central Federal Clinic in San
Antonio, Texas. She filed an EEO complaint in which she alleged that her immediate
supervisor, the Supervisory Diagnostic Radiological Technologist (S1), a Radiologist, and one
of her Coworkers subjected her to a hostile work environment between April 2009 and March
2010 because of her national origin (Hispanic), disability (depression), and age (62). At the
conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the
Agency’s April 24, 2012, motion for summary judgment and issued a decision on July 31,
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2012, without holding a hearing. 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.

A number of incidents that occurred between April and August of 2009 involved
Complainant’s interactions with her Coworker. She averred that during the time frame in
question, the Coworker made derogatory comments to her such as, “you should be in a wheel
chair,” that the Coworker answered her telephone while she was present in the office, and that
the Coworker interjected herself into her conversations with patients and colleagues.
Complainant also averred that S1 and the Radiologist sided with the Coworker against her by
accusing her of “talking down” to the Coworker. IR 304-05. The Coworker denied making
the wheelchair comment that Complainant attributed to her. IR 216. She likewise had no
recollection of answering Complainant’s telephone or interrupting her conversations. IR 217-
18. S1 and the Radiologist testified in their affidavits that the relationship between
Complainant and the Coworker was one of conflict, and that Complainant was the aggressor in
that relationship. IR 219-21, 229-30, 238, 313, 427-28. On August 25, 2009, S1 issued
Complainant a letter of counseling for unprofessional conduct receiving reports from the
Radiologist and the Coworker that Complainant had become verbally abusive toward the
Coworker. IR 240, 263, 306-08.

On January 5, 2010, S1 issued Complainant a proposed admonishment for behaving rudely
toward a patient. The specification on the proposed admonishment stated that on October 19,
2009, the Radiologist reported that she had seen a patient visibly upset and crying. When
asked by the Radiologist what the problem was, the patient replied that Complainant had
treated her very rudely and had displayed a negative attitude and behavior. The admonishment
was finalized on February 11, 2010. IR 236-37, 241-42, 246-48, 267, 269, 317, 367-73, 375,
432.

Complainant averred that S1 took various actions against her that involved leave, including
threatening to charge Complainant with absence without leave (AWOL), denying her requests
for annual and leave, publicly questioning another of Complainant’s sick leave requests before
approving it, and attempting to place her on leave restrictions. IR 266, 304-05. S1 denied
threatening to place Complainant in AWOL status noted that Complainant was never placed in
AWOL status on the date in question. IR 239. S1 averred that she disapproved Complainant’s
request for annual leave on September 4, 2009, due to staffing shortages. IR 240-41, 315. S1
also testified that she denied Complainant’s sick leave request on November 5, 2009, because
she had observed that Complainant had become emotionally upset during a fact-finding
conference and merely wanted to leave. IR 242. The following day, S1 did question
Complainant about her leave because she began to notice a pattern in which Complainant had
been requesting leave right after union meetings involving her conduct. S1 nevertheless
approved her sick leave request for that day. IR 243, 249-51.

Complainant averred that on January 5, 2010, S1 accused her of being out of the work area for
an hour on the previous day. S1 testified that she had been informed by another Staff
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Radiology Technician that there were patients in the waiting area and Complainant could not
be located. Complainant had been away from her work area for approximately one hour. IR
246-47, 345.

Finally, Complainant averred that S1 had accused her of failure to follow supervisory
directions and protocols. S1 responded that Complainant improperly prefilled a stack of
comment cards for patients and refused to use new comment cards that had been prepared for
patients. IR 243-45. S1 also testified that she had received an email from the Radiologist that
Complainant had not been following proper protocols when taking shoulder x-rays, and that
she had explained the protocols to Complainant. IR 246-49. S1 averred that she did not take
disciplinary action against Complainant for any of these incidents.

ANALYSIS AND FINDINGS

To warrant a hearing on her claim of discriminatory harassment, Complainant would have to
present enough evidence to raise a genuine issue of material fact as to whether, because of her
national origin, age or disability, she was subjected to conduct so severe or pervasive that a
reasonable person in Complainant’s position would have considered it hostile or abusive. See
29 C.F.R. § 1614.109(g); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad
v. U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). She can satisfy her
burden with evidence of discriminatory statements or past personal treatment attributable to
any of the individuals named in her complaint, comparative data showing differences in
treatment across age, disability, or ethnicity lines, unequal application of Agency policy,
deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record.

S1’s affidavit testimony indicates Complainant had difficulties in her interpersonal relationships
with patients and her Coworker, and that these difficulties eventually resulted in her being
issued a letter of counseling and an admonishment. S1 also maintained that Complainant had
issues regarding leave usage, attendance, and following directions. S1’s testimony had been
corroborated by that of S2 and the Coworker, as well as by contemporaneously prepared
emails and memoranda documenting the actions taken by S1. While Complainant asserts that
S1 and the other individuals she named in her complaint harbored unlawful motives concerning
her national origin, age, and depression, she has not presented any sworn statements from
other witnesses or documents that contradict the explanations provided by those officials or
which call their veracity into question. We therefore find that Complainant has not raised a
genuine issue of material fact on the issue of motive. Consequently, there is no need for the
Commission to inquire as to whether any of the incidents comprising her claim are severe or
pervasive enough to rise to the level of a hostile environment or whether they constitute
separate acts of discrimination under disparate treatment theory. Ultimately, we agree with the
AJ, that no genuine issue of material fact exists with respect to Complainant’s claim of
discriminatory harassment and that the AJ acted within her discretion in issuing a decision on
summary judgment.

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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 (M0815)

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, 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.
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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 Complainants 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

September 16, 2015
Date