0120121673
08-03-2012
Albert McNeill, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Albert McNeill,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120121673
Hearing No. 541-2011-00111X
Agency No. 2003-0554-2009104219
DECISION
Complainant filed a timely appeal from the Agency's January 5, 2012, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the entry of summary judgment in favor of the Agency was appropriate.
BACKGROUND
Complainant worked as a Patient Services Assistant at the Agency's VAMC Eastern Colorado Health Care System facility in Denver, Colorado. Complainant had prior EEO activity. Complainant's current supervisor (RMO1) and former supervisor (RMO2) denied knowledge of Complainant's EEO activity.
On August 7, 2009, Complainant initiated EEO Counselor contact. On November 17, 2009, Complainant filed an EEO complaint, alleging that the Agency subjected to retaliatory harassment, for his protected EEO activity.
The Agency accepted some of the claims, the Agency characterized in its acceptance letter, as presenting a harassment/hostile work environment claim. Complainant alleged that the Agency discriminated against Complainant based on reprisal when:
1. From February 19, 2009 to May 28, 2009, the Chief (RMO2) subjected him to a hostile environment when he was not selected for promotion under four different vacancy announcements;
2. On June 25, 2009, Complainant was aggravated after RMO2 tried to charge him Absence without Leave (AWOL) for a pre-approved absence;
3. On July 30, 2009, the Agency did not select him for the position of Program Support Assistant, GS-0303-07 under Vacancy Announcement No. 09-153;1
4. On August 3, 2009, his supervisor (RMO1) told a co-worker that Complainant would not be in due to a fact-finding investigation;
5. On August 7, 2009, a fact-finding investigation was conducted against Complainant;
6. On August 12, 2009, the timekeeper (RMO3) demanded that Complainant put in a leave request for time when he was at lunch;
7. On August 13, 2009, RMO2 asked Complainant questions about one of the fact-finding investigations relating to him;
8. On August 18, 2009, RMO1 denied Complainant an authorized absence to prepare for a fact finding;
9. On August 19, 2009, another fact finding investigation was initiated against Complainant;
10. On August 21, 2009, RMO1 reassigned Complainant from the information counter to the registration desk and changed his duties;
11. On August 24, 2009, RMO1 denied Complainant an authorized absence to complete a survey;
12. On September 3, 2009, the timekeeper (RMO3) demanded personal information from Complainant concerning the Family Medical Leave Act (FMLA); and
13. On September 10, 2009, RMO2 informed Complainant that he received allegations of intimidation, rudeness, inappropriate conduct, sexual harassment, and misuse of government email against Complainant.
The Agency dismissed the allegations (noted above in claim 1) that pertained to the non-selections from July 30, 2008 to April 2, 2009 for untimely EEO contact.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 11, 2011, motion for a decision without a hearing and issued a decision without a hearing on December 28, 2011.
The AJ dismissed the non-selection allegations (noted above collectively as claim 1) for untimely EEO contact because the discrete actions arose more than 45 days before Complainant's EEO contact on August 7, 2009. The AJ then found that Complainant did not specifically dispute any of the Agency's statement of material facts, with the exception of whether management was aware of Complainant's EEO activity. In her analysis, the AJ assumed that the named management officials were aware of Complainant's prior activity. The AJ concluded that, assuming that Complainant showed that the alleged events actually occurred, he failed to raise a genuine dispute of material fact with regard to any of the Agency's articulated reasons or offer any proof that the reasons were a pretext for 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.
The record reflects that the Chief of Ambulatory Care and Processing (RMO2) had been named in one of Complainant's complaints, but Complainant requested to remain anonymous. On June 25, 2009, Complainant was perturbed after RMO2 tried to charge Complainant with AWOL for a pre-approved absence that had been approved by his supervisor (RMO1). Complainant was not charged with AWOL.
The record shows that Complainant withdrew the claim that on July 30, 2009, the Agency did not select him for the position of Program Support Assistant, GS-0303-07 under Vacancy Announcement No. 09-153.2 Because this claim was withdrawn, it is not before us on appeal.
On August 3, 2009, RMO1 told a co-worker that Complainant would not be in. On August 7, 2009, a fact-finding investigation was done against Complainant. Complainant made EEO contact on August 7, 2009.
On August 12, 2009, the timekeeper (RMO3) requested that Complainant put in a leave request for the time when Complainant was away from his desk. Complainant acknowledged that he was away, but he maintains that he was using his lunch hour to attend to other matters. On August 13, 2009, RMO2 asked Complainant questions about a fact-finding investigation relating to him. On August 18, 2009, RMO1 denied Complainant authorized absence to prepare for a fact finding. Complainant did not place a request in the Agency's time tracking system (vista) or provide a reason for the leave being requested. On August 19, 2009, another fact finding investigation was initiated against Complainant after the Agency received complaints against him. On August 21, 2009, RMO1 reassigned Complainant from the information counter to the registration desk and changed his duties after management received several complaints from veterans against Complainant; The Agency stated that it reassigned Complainant after the Agency received three customer service complaints Complainant did not dispute that the Agency received complaints.
On August 24, 2009, the Agency denied Complainant 59 minutes of authorized absence to complete the employee survey because Complainant took sick leave for that entire day. RMO1 denied Complainant an authorized absence which was previously authorized to complete a survey because Complainant requested eight hours of leave for the period at issue and because she believed that he had already used the one hour of survey time.
On September 3, 2009, RMO3 (timekeeper) requested personal information from Complainant concerning a Family Medical Leave Act (FMLA) request. On September 10, 2009, RMO2 informed Complainant that others had made claims against Complainant.
CONTENTIONS ON APPEAL
On appeal, Complainant does not dispute the adequacy of the record or that he was provided an opportunity for discovery. Complainant maintains, however, that the AJ relied inappropriately upon the statements of the Agency officials. He also argues the named officials denied him an authorized absence to complete the interrogatories deadline, but he did not identify any evidence that refutes the Agency's stated reasons.
In response, the Agency requests that the appeal be dismissed as untimely filed. Alternatively, the Agency contends that final decision was appropriate for the reasons fully and correctly set forth in the AJ's Decision.
ANALYSIS
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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). 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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
We agree with the AJ's finding that the incidents that occurred more than 45 days prior to the EEO contact are time-barred. In addition, the record indicated that Complainant withdrew his allegation with regard to July 30, 2009 non-selection. Consequently, the only actions that are timely and properly before us are those that occurred after July of 2009. Those allegations pertain to management's decisions regarding leave, assignments and the initiation of fact finding following complaints made against Complainant.
In this case, we find that the record is appropriate for summary judgment, because the record was adequately developed and the undisputed facts provide a basis upon which the Commission can enter judgment as a matter of law.
To prevail in a disparate treatment claim such as this, Complainant would have to show that the Agency subjected him to an adverse employment action under circumstances that would support his claim of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). For purposes of our analysis, we will assume that management was aware of Complainant's EEO activity. We recognize that the Agency's denial of leave, reassignment of duties and the multiple fact-finding investigations could support an inference of unlawful retaliation.
This prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-717 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 0595042 (November 13, 1997). The record reflects that the Agency did not grant leave because Complainant did not place a request in vista. Complainant does not dispute that he did not submit a leave request through vista.
The Agency reassigned Complainant after the Agency received three customer service complaints from veterans. Complainant did not dispute this. The Agency denied Complainant 59 minutes of authorized absence to complete the employee survey because Complainant took sick leave for that entire day.
There is no evidence that Complainant was subjected to AWOL and no record evidence that management threatened or aggravated him.
It is also undisputed that the timekeeper requested documentation from Complainant. Because she believed that she needed to see support before she could process a FMLA request. It is also clear that Complainant did not comply with the timekeeper's request and that he did not suffer any disciplinary action. His leave was authorized. It is also undisputed that the Agency clarified the timekeeper's responsibilities, once the matter was brought to management's attention. There is no evidence that management released personal information to employees and there is no allegation of any harm from the Agency's informing Complainant that others had raised concerns with RMO2 about Complainant.
Nevertheless, and assuming the facts to be true and as stated by Complainant, that does not prove that the Agency's stated reasons for its actions (like reassigning Complainant to resolve customer service complaints against Complainant) was a pretext for discriminatory animus.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Here, Complainant does not dispute any of the material facts upon which the AJ's decision is based. Complainant disagrees with management's decisions to deny leave, to reassign him and to question him or initiate fact-finding investigations, following the receipt of customer service complaints. It is also clear that Complainant did not comply with the timekeeper's request and that he did not suffer any disciplinary action. His leave was authorized. It is also undisputed that the Agency clarified the timekeeper's responsibilities, once the matter was brought to management's attention. There is no evidence that Complainant was subjected to AWOL. There is no evidence that management released personal information to employees and there is no allegation of any harm. Without any record support, he maintains that incidents that occurred after his EEO contact raise credibility issues.
In this case, however, Complainant failed to provide any probative evidence that the Agency's stated reason for the incidents at issue, was a pretext for unlawful discrimination. We find, therefore, that the entry of summary judgment was appropriate, for the reasons stated herein.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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 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 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).
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
August 3, 2012
__________________
Date
1 Complainant withdrew this non-selection claim during discovery.
2 Complainant withdrew this non-selection claim during discovery.
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0120121673
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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