Zachery V.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 3, 2019

0120180430 (E.E.O.C. Apr. 3, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Zachery V.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120180430

Hearing No. 420-2016-00046X

Agency No. 200I-0521-2015101626

DECISION

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 2, 2017, final order
concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final
order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Instrument
Technician, GS-7/Hybrid Title 38, at the Agency’s facility in Birmingham, Alabama. On March
2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him
on the basis of reprisal for prior protected EEO activity when on February 4, 2015, he was issued
an admonishment after the charges outlined in a proposed admonishment, issued on or about
January 15, 2015, were sustained.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment

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.
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Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ
assigned to the case found that, after viewing the evidence in a light most favorable to
Complainant, a decision without a hearing was appropriate as there were no genuine issues of
material fact in dispute. The AJ issued a decision without a hearing on September 22, 2017, finding
no discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged. On appeal,
Complainant argues that the AJ improperly issued a decision without a hearing as there are issues
of material fact in dispute.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a final decision issued without a hearing,
pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the
Commission. 29 C.F.R. § 1614.405(a). 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 102, 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, it is not
appropriate for an AJ to issue a decision without a hearing. In the context of an administrative
proceeding, an AJ may properly issue a decision without a hearing only upon a determination that
the record has been adequately developed for summary disposition. Petty v. Defense Security
Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army, EEOC
Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, the Commission finds that a decision without a hearing was
appropriate, as no genuine dispute of material fact exists. To prevail in a disparate treatment claim,
Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a
prima facie case by demonstrating that he was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Construction Co. v.
Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of
the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the
Agency to articulate a legitimate, non-discriminatory reason for its actions.
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Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of reprisal
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, the record shows that on October 15, 2014, three employees, including
Complainant’s former supervisor, conducted an inspection of the endoscopy reprocessing area
(RPA) to which Complainant was assigned. Following this inspection, Complainant was issued a
notice of proposed admonishment which stated that he had been observed failing to follow
cleaning instructions for endoscopes, stacking three endoscopes on top of each other in the sink,
and failing to store the endoscopes properly. The notice also stated that he failed to follow personal
protective equipment (PPE) standard operating procedure when he repeatedly entered the RPA
without wearing the proper head cover, left the RPA while wearing contaminated PPE, and failed
to properly dispose of PPE prior to leaving the RPA. Subsequently, the Chief, Gastroenterology
Service, issued Complainant a memorandum, dated February 4, 2015, upholding the charges set
out in the proposed admonishment which was signed effective February 24, 2015. The record
shows that the Agency’s table of penalties states that an admonishment is appropriate for a first
offense, and that Complainant acknowledges that he was not wearing the head cover set out in the
Agency’s standard operating procedure, and that he stacked three endoscopes on top of each other
in the sink. As such, we concur with the AJ’s finding that Complainant failed to show that the
Agency’s articulated reasons for its actions were a pretext for unlawful retaliation. Complainant
has failed to show that similarly situated persons were treated differently.

CONCLUSION

We find that viewing the record evidence in a light most favorable to Complainant, there are no
genuine issues of material fact. We further find that the AJ appropriately issued a decision without
a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s decision
and the Agency’s final order is AFFIRMED.

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.
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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.
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.

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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

April 3, 2019
Date