0120120122
06-21-2013
Brenda Overstreet, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Brenda Overstreet,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120122
Hearing No. 430-2010-00189X
Agency No. 2004-0658-2009103154
DECISION
On October 7, 2011, Complainant filed an appeal from the Agency's September 7, 2011, 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. The Commission accepts the appeal as timely pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issue presented is whether the Administrative Judge properly issued a decision without a hearing, and whether she properly found that Complainant had not established that the Agency discriminated against her as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a Nurse Manager at the Agency's Lynchburg Community-Based Outpatient Clinic in Lynchburg, Virginia. Complainant was hired by the Agency on September 28, 2008, began work at the Lynchburg Clinic on November 21, 2008, and was on a two-year probationary period. The Lynchburg Clinic was under the direction of the Salem Medical Center. On September 2, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity arising under Title VII when:
1. she was subjected to harassment when:
a) on May 4, 2009, she was removed from her workplace and placed on administrative leave;
b) on May 5, 2009, she was given a proficiency report and was told by her supervisor that it was related to her performance; and
c) on June 3, 2009, she received a letter terminating her during her probationary period, effective June 26, 2009.
2. on May 4, 2009, she was removed from her workplace and placed on administrative leave.
3. on June 3, 2009, she received a letter terminating her during her probationary period effective June 26, 2009.
The Agency accepted the complaint for investigation in a letter dated October 27, 2009, and defined the issues as listed above. Complainant objected to the definition of the complaint issues, and submitted that a number of other incidents involving her interactions with the Administrative/Office Manager (male) should be included in her allegation of hostile work environment. The Agency declined to revise the accepted issues in the complaint.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On June 30, 2011, the Agency filed a Motion for a Decision without a Hearing. Complainant filed a response to the Agency's Motion on July 21, 2011. The Agency filed a rebuttal to Complainant's response on July 25, 2011. The AJ assigned to the case issued a decision without a hearing on August 12, 2011.
In her decision, the AJ found that Complainant had begun her two-year probationary period as a Nurse Manager at the Lynchburg Clinic on November 28, 2008. The Administrative Manager at the Lynchburg Clinic was a male who had begun working with the Agency on August 3, 2008, and who was on a one-year probationary period. Complainant and the Administrative Officer did not work well together and there were many conflicts over the ensuing months, which Complainant reported to her supervisors. In April and May 2009, the Executive Assistant to the Chief of Staff of the Salem Medical Center was sent to investigate the complaints by Clinic staff about the work environment. He interviewed 19 staff members, including Complainant and the Administrative Officer. Many staff members cited the continuing conflict between Complainant and the Administrative Officer as the root cause of the negative work environment at the Lynchburg Clinic.
On May 4, 2009, Complainant contacted the VA Police Service regarding an incident between the Administrative Officer and one of the nurses. Later in the morning, Complainant and the Administrative Officer had a loud argument which could be heard by the staff and patients. That same day, Complainant was informed that she was being put on administrative leave because of unsatisfactory job performance. She was also informed that a summary review was going to be conducted into her performance, and that a Summary Review Board would make a recommendation about her continued employment with the Agency.
On May 4, 2009, the Administrative Officer was also put on administrative leave. On May 5, 2009, he was informed that he would be terminated from the Agency for unacceptable performance and conduct, effective May 15, 2009. The Administrative Officer submitted his resignation on May 6, 2009.
On May 20, 2009, a Summary Review Board composed of five Nurses reviewed Complainant's performance. On May 28, 2009, the Summary Review Board recommended Complainant's termination. The Medical Director approved the Summary Review Board's recommendation. On June 6, 2009, Complainant received a letter of termination. Complainant was terminated effective June 26, 2009.
The AJ found that Complainant had not established a prima facie case of sex discrimination because she had not shown that similarly-situated employees who also had performance problems had not been put on administrative leave. She also had not identified similarly-situated individuals outside her protected class who were treated more favorably than her with respect to the low proficiency-rating, and her termination. Complainant maintained that her low proficiency-rating and subsequent termination were the result of the Administrative Officer creating a gender-based hostile work environment.
Assuming Complainant had established a prima facie case of sex discrimination, the AJ found that the Agency had articulated legitimate, non-discriminatory reasons for its actions, which Complainant had not shown to be pretext for discrimination. The AJ found that the evidence supported a conclusion that Complainant and the Administrative Officer were engaged in "a power struggle" over running the Lynchburg Clinic. The AJ noted that the report of the investigation by the Executive Assistant had concluded that both were "equally responsible for the dysfunctional management, lack of leadership, and overall dysfunction" of the Clinic. The interviews with the 19 employees of the Lynchburg Clinic reflected that most employees thought the conflict between Complainant and the Administrative Officer was a significant problem. The AJ also concluded that Complainant had not shown that the Administrative Officer's behavior towards her was so severe or pervasive such that a hostile work environment existed. Although the AJ noted that it was clear that the two did not get along, she concluded that Complainant had not shown that her performance was affected by the Administrative Officer creating a gender-based hostile work environment towards Complainant.
As to Complainant's claim of discrimination based on reprisal, the AJ found that Complainant had not shown that she had engaged in prior protected EEO activity before her EEO Counselor contact on May 21, 2009. She also found that Complainant had not shown that any of the Summary Review Board members were aware of her EEO activity when they recommended Complainant's termination on May 28, 2009. The AJ concluded that Complainant had not established that her termination was in retaliation for filing her EEO complaint.
In her decision, the AJ noted that while Complainant had objected to the framing of the issues when the Agency accepted her complaint for investigation, she did not again raise the issue with the AJ and so the AJ analyzed the complaint with the issues as framed by the Agency.
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. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her argument in support of her appeal, Complainant argued that her low proficiency-rating and unfavorable recommendation from the Summary Review Board were caused by her inability to control the conduct of the Administrative Officer. She argued that the hostile work environment that he created for both her and the staff that she supervised made it impossible for her to be an effective Nurse Manager and that the Agency ignored her many complaints about his behavior. She also argued that it was error for the AJ to have issued a decision without a hearing. The Agency submitted a brief in opposition to Complainant's appeal in which it urged the Commission to affirm the decision of the AJ and its final order.
STANDARD OF REVIEW
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. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 the 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 Chap. 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").
ANALYSIS AND FINDINGS
Decision without a hearing
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). 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. 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); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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).
In the instant case we find that the AJ's decision to issue a decision without a hearing was appropriate. The AJ viewed the evidence in the light most favorable to Complainant when considering Complainant's allegations. There was no need to resolve any issues of credibility. Although Complainant argued that summary judgment was inappropriate, she did not specifically delineate exactly what evidence required the AJ to make factual findings or credibility determinations. We note that the AJ took the facts in the light most favorable to Complainant and that she included an analysis of the alleged hostile work environment created by the Administrative Officer. The AJ noted that Complainant herself had not alleged that she had been a victim of the Administrative Officer's behavior, and that the analysis of the existence of a hostile work environment would have been quite different had Complainant been a Nurse, and not a Nurse Manager. Therefore, we find that the issuance of a decision without a hearing was appropriate.
Disparate treatment
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 or she 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, nondiscriminatory reason for its actions. 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that she was discriminated against as alleged. We assume that Complainant established a prima facie case of sex and reprisal discrimination on each of her claims. We also assume that Complainant had established a prima facie case of reprisal on the issues of her being placed on administrative leave, and given a low proficiency-rating, based on her repeated reports to superiors regarding the abusive behavior of the Administrative Officer towards the Clinic staff, which would have constituted opposition to a gender-based hostile work environment. However, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant has not proven to be pretext for discrimination. A review of the record, and more specifically, the report of the Executive Officer who interviewed the 19 Clinic staff members, shows that Complainant had performance issues beyond her inability to control the hostile behavior of the Administrative Officer. While her conflict with him contributed to the dysfunction of the Clinic, the Agency also relied on the recommendation of the Summary Review Board when it rated Complainant "low satisfactory" and recommended her termination. We find that Complainant has not established that the actions of the Agency were taken based on her sex or in reprisal for her protected EEO activity.
CONCLUSION
Based on a thorough review of the record and of the contentions of the parties on appeal, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant did not establish that she was discriminated against as alleged.
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 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 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
June 21, 2013
Date
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0120120122
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120122