Hertha W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 26, 20190120172421 (E.E.O.C. Feb. 26, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hertha W.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172421 Hearing No. 5602014000318X Agency No. 200303312013103914 DECISION On July 1, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 22, 2017, final order concerning her equal employment opportunity (EEO) complaint. She alleged 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 At the time of events giving rise to this complaint, Complainant worked as a Fiscal Accounts Clerk at the Agency’s Education Division, VA Regional Office facility, in St. Louis, Missouri. On July 23, 2013, Complainant made contact with an EEO Counselor. On November 4, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and disability when: 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. 0120172421 2 1. from 2010 through June 7, 2013, Complainants supervisor assigned Complainant the duties of a Lead Fiscal Account Clerk, GS-07, without providing any assistance; 2. Similarly, from June 8, 2013, through September 10, 2013, S1 assigned Complainant the duties of a Lead Fiscal Account Clerk, GS-07, without providing any assistance; 3. From 2010 to the present, the Education Officer (S2), assigned Complainant the duties of a Lead Fiscal Account Clerk, GS-07, without compensating and / or promoting Complainant; 4. From 2010 to the present, S2 assigned Complainant “higher graded duties in the Work-Study division,” without compensating and / or promoting Complainant; and 5. On May 28, 2013, the Coach (S3) permanently removed Chapter 30 duties from Complainant. Initially, the Agency dismissed Complainant’s claims regarding lack of assistance and loss of Chapter 30 duties.2 The pertinent record reveals the following facts. Complainant is an African American woman, She identified her disability as work place stress. She had prior known EEO activity. In October 2010, a co-worker (Caucasian male) was selected for a Lead Fiscal Accounts Clerk position. Starting a month later (in November of 2010), Complainant began to perform the co-worker’s duties, because the co-worker was diagnosed with cancer. Complainant testified that she performed the higher graded duties from November 2010 through June 2014. S2 (Caucasian male, no prior EEO activity) is the Education Officer at the VA Regional Office. She testified that the Agency previously had a team of seven Fiscal Accounts Clerks and one Lead Fiscal Accounts Clerk, but the Lead Clerk retired and the other Account Clerks left, except for Complainant. The Senior Veterans Claims Examiner testified that when the former Lead became ill, other Clerks picked up various processing duties. She also testified that the Lead Fiscal Accounts Clerk was paid at a higher-grade level because of his duties to train, mentor, and review the work for staff. She testified that she (the Examiner) assumed these additional duties of quality, review and authorization of sensitive cases. S1 testified that Complainant was never asked to do any Lead work and that Complainant’s position never changed. She testified that Complainant performed other duties, on her own, that were not assigned to her. 2 The Administrative Judge (AJ) assigned to the conduct the hearing overruled the dismissal of the assistance claims and found them to be properly subsumed in the pay claims. She also reinstated the Chapter 30 duties claim. 0120172421 3 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 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 May 1, 2017, motion for a decision without a hearing. The AJ issued a decision without a hearing on May 26, 2017. The AJ found that “at no time has Complainant alleged anything about comparison employees being treated more favorably” during the relevant time period.3 The AJ assumed for purposes of this decision that Complainant was assigned the work of the Lead Clerk. In finding for the Agency, however, the AJ also reasoned that Complainant was clearly presenting a classification question, even though she stated that she was denied assistance, promotion and higher level pay due to her prior harassment complaint in 2008 and based on her protected group status. The AJ found that Complainant failed to establish her claim because the non-selection in 2010 was not included in this complaint. To the extent that Complainant argued that she should be promoted based on her performance of higher-level duties, the AJ found that this was a classification issue, and that the prior employee in the Lead position was not a proper comparator because he was not similarly situated to Complainant because the comparator had additional responsibilities and held a different job title. Finally, the AJ found that Complainant failed to establish reprisal, because she failed to establish a causal connection between the alleged incidents in 2010 and her prior protected activity in 2008. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to the discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant acknowledged that her current EEO case is based on performing “higher graded duties without higher graded pay.” Complainant argues that a prima facie claim for reprisal can be made that a verbal exchange, that occurred during ADR mediation on her earlier complaint, between S1 and Complainant, was the reason for reprisal and the subsequent adverse 3 The AJ acknowledged that Complainant’s claim was based on race, citing a Caucasian comparator, who was selected for the position in 2010, instead of Complainant. The AJ reasoned that the 2010 non-selection was not an issue in this case. The AJ also acknowledged Complainant’s testimony that her claim was based on sex because when the male employee left, Complainant did not receive a promotion or compensation for the work that the Caucasian male performed. She claimed disability discrimination because Complainant was informed that her absence due to her job-related stress was a factor in her not being promoted in 2010. She claimed reprisal because she had not been promoted since her EEO complaint in 2008. 0120172421 4 actions by the Education Director towards Complainant. Complainant previously alleged that S2 failed to stop harassment against Complainant by a male co-worker and that during the ADR meeting, after Complainant read aloud from her written documents that the Director promised Complainant Medical leave, S2 abruptly stated that Complainant’s statements were making her “upset” and that she needed a break, S2 never returned to the ADR process, and “refused to sign the proposed settlement Agreement document.” Complainant alleges that the Education Director’s refusal to sign the proposed Settlement Agreement “was the beginning of a personal reprisal and adverse treatment against Complainant.” Complainant escalated her appeals. She appealed to the Secretary of the VA and to her Congressional representative. She said that she should have been provided with “Whistle Blower Protection,” but she was not protected. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. The non- selection that occurred in 2010 was not a claim in the current dispute. To the extent that Complainant wishes to challenge her pay, her recourse was to seek an audit of her position and reclassification. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 0120172421 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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 tends 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120172421 6 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 February 26, 2019 Date Copy with citationCopy as parenthetical citation