Iliana S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 9, 2020

2019001976 (E.E.O.C. Jun. 9, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iliana S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019001976 Hearing No. 480-2015-00233X Agency No. 200PV1222011104610 DECISION On November 15, 2018, 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 October 17, 2018, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Accountant, GS-11, Step 7, at the Agency’s VISN, Network Business Center, Accounting facility in Long Beach, California. On December 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Filipino), national origin (Philippines), sex (female), 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. 2019001976 2 color (Brown), disability2 (right shoulder injured tendons and rotator cuff), age (68), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 1. On July 15, 2011, Complainant received an unsatisfactory mid-year performance progress review; 2. On July 18, 2011, Complainant was denied a within-grade increase (WIGI); and 3. On September 29, 2011, Complainant was placed on a Performance Improvement Plan (PIP) 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 January 29, 2013, motion for a decision without a hearing and issued a decision without a hearing on September 24, 2018. Specifically, the AJ found that the Agency accommodated Complainant’s disability, but that Complainant was nevertheless unable to meet the production standards of her position. The AJ further found that Complainant completed the PIP and was awarded her WIGI over a year after the original date. Finally, the AJ found that Complainant failed to provide direct or circumstantial evidence of disparate treatment. 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. The instant appeal followed. ANALYSIS AND FINDINGS 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 2 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2019001976 3 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment. Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination. We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to Complainant’s mid-year performance progress review, Complainant’s Supervisor (S: Pacific Islander, Samoan, Female, Brown, no claimed disability, 63 years) averred that Complainant failed to achieve the minimum quota of “aged payables” and that some of the “packages” Complainant managed to complete “were incorrect and we returned them to her for corrections.” In addition, S averred that “Federal advances were not offset promptly and properly” resulting in either over or underpayments. S further averred that, with regard to “Interpersonal Effectiveness” some of Complainant’s work emails to coworkers were hard for the recipients to understand, that Complainant did not take constructive criticism well, and that she was not open to new ideas. Finally, with regard to Accounting Transactions, S averred that: I found some of the general vouchers were not properly prepared. She needs to do a better job on researching, researching why the general ledger account is out of 2019001976 4 balance, why there are negative balances on a Work In Process Report. It's a no-no. There shouldn't be any negative balance on the 876 report. So she needs a lot of improvement. With regard to Complainant not receiving her WIGI, S averred that: The reason . . . she was denied her . . . increase is because she needs improvement on the mid-year performance, and I told her she can work on it, you know, bring up her aged payable and she can do better on the federal advances, reduce it down, maybe bring it current and then she'll get her grade increase. With regard to Complainant being placed on a PIP, A averred that: The reason why I put her on a Performance Improvement Plan was because she needs to improve. I want her to bring up her quota. I want her to complete her quota, like for that period of time, from April, May, June, July, August, September, because she was failing. She was behind too on her aged payable, so I really wanted to bring her current. Finally, we note that S denied that Complainant’s protected bases were the reasons for her actions. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. We note that Complainant did not deny management’s contentions concerning her performance but averred that because of her medical restrictions she was unable to perform as well as her colleagues and that S failed to take this into account in her evaluation. We note however that an employer is not required to lower performance standards in order to accommodate an individual with a disability. Furthermore, the record shows that the Agency did ergonomically redesign Complainant’s workspace because of her medical restrictions although it is unclear from the record when this occurred. We note, however, that Complainant has not claimed that the Agency engaged in any unreasonable delay in this regard. We next note that the denial of Complainant’s WIGI and her placement on a PIP were both tied to her poor performance, and so Complainant’s arguments apply to all three issues. In her rebuttal statement, Complainant averred that S had been her supervisor for less than six months, which Complainant felt was too brief a period to evaluate her performance. Complainant further averred that the standards used to evaluate her performance were unreasonable and that her inability to meet them was based on events outside of her control, and that management officials resort to favoritism among the employees. Such arguments, however, would apply to all employees supervised by S and so do not show Complainant was singled out because of her protected bases. Following a review of the record we agree with the AJ’s finding that Complainant failed to establish that Agency officials harbored any animus towards her protected bases or that the Agency’s articulated reasons for its actions were pretextual. 2019001976 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination or reprisal occurred, and we AFFIRM the final order. 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 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. 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. 2019001976 6 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 June 9, 2020 Date