0120102278
07-26-2012
Cara N. Freeman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cara N. Freeman,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102278
Hearing No. 541-2009-00031X
Agency No. 2003-0742-2008103368
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 23, 2010 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission's review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support Clerk at the Agency's Health Administration Center in Denver, Colorado. On July 28, 2008, Complainant arrived for duty at 6:25 a.m. A co-worker informed Complainant's supervisor (S1) that he witnessed Complainant sitting at her workstation at 7:30 a.m., but not performing any duties. The co-worker further stated that Complainant's monitors were turned in a way that she would not be able to see the screens. As a result, on July 29, 2008, S1 issued Complainant a written counseling for failure to start work at her scheduled time. In the memorandum, S1 noted that another supervisor corroborated the co-worker's statement and that Complainant had previously been counseled about arriving ready to work.
On August 2, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and disability when she received a formal letter of written counseling for failing to perform productive work during the first hour of her tour of duty on July 28, 2008.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ issued a decision without a hearing on March 16, 2010.
In his decision, the AJ determined that Complainant had not established a prima facie case of race and disability discrimination. Specifically, the AJ found that Complainant had not shown that she was an individual with disability under the Rehabilitation Act. As to race discrimination, the AJ concluded that Complainant had not shown that she was subjected to an adverse action as a written counseling did not constitute a significant change in Complainant's employment status. Further, Complainant had not established that she was treated less favorably than a similarly-situated individual outside her protected class. Additionally, the AJ determined that Complainant had not established any circumstances from which an inference of discrimination could be inferred and had therefore not established a prima facie case of race or disability discrimination. As a result, the AJ found that Complainant had not been discriminated against as alleged. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in finding that she was not an individual with a disability under the Rehabilitation Act. Complainant contends that she was falsely accused of not working and the Agency's cameras and monitors should show that she was working. Further, Complainant stated that S1 lied about her not performing work and listed various tasks that she performed during the time period in question. Accordingly, Complainant requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission 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.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. When a party moves for a decision without a hearing, such as the Agency did here, the non-moving party's opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and her arguments on appeal do not undermine the AJ's determination that, even assuming all facts in her favor, a reasonable fact finder could not find in her favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim such as this, 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming for the sake of argument that Complainant established a prima facie case of race and disability discrimination, the Commission finds that the Agency has articulate legitimate, nondiscriminatory reasons for its actions. Specifically, S1 affirmed that Complainant was issued the written counseling for failing to start working at her scheduled time of her tour of duty. ROI, S1's Aff., at 5. Complainant's co-worker observed her sitting at her desk approximately an hour after the start of her scheduled shift not performing any duties. ROI, Ex. C5, at 2. S1 noted that another supervisor also observed Complainant sitting at her desk not performing any work. ROI, Ex. C5, at 3. Further, the record reveals that S1 had previously discussed with Complainant about her failure to begin working at the start of her tour of duty.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
Complainant produced a log sheet which she claims shows that she began working at the start of her shift. The log, however, only lists batch numbers and dates with no specific times associated with the batch numbers. Construing the evidence in the light most favorable to Complainant, the Commission finds that the record is devoid of any evidence that Complainant's race and disability were factors in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden. Accordingly, the Commission finds that Complainant has failed to show that she was discriminated against as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate, and a preponderance of the record evidence does not establish that discrimination occurred.
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 (Nov. 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
July 26, 2012
Date
1 In addition, Complainant alleged that the Agency discriminated against her on the bases of race (African-American) and disability when, in June 2008, she received a verbal counseling regarding her start time and emails related to the verbal counseling. The Agency dismissed Complainant's claim regarding the verbal counseling pursuant to 29 C.F.R. 1614.301(a)(4) for alleging the same claim previously raised during a negotiated grievance procedure which allows claims of discrimination. Additionally, the Agency dismissed the email-related claims pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim as Complainant had not suffered a harm or loss with respect to a term, condition, or privilege of employment. Complainant does not raise any challenges to these dismissals on appeal; therefore, the Commission declines to address these matters in the instant decision.
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0120102278
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102278