Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 26, 2013

0120121192 (E.E.O.C. Mar. 26, 2013)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120121192

Hearing No. 430-2011-00139X

Agency No. 2004-0659-2010102601

DECISION

Complainant filed an appeal from the Agency’s final order dated December 7, 2011, finding no
discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

The record indicates that Complainant alleged discrimination based on race (White), sex
(male), and in reprisal (for prior EEO activity) when effective April 2, 2010: (1) he was
reassigned as Staff Nurse in the Mental Health Clinic; (2) he was taken off all committees with
the Salisbury VAMC (Veterans Affairs Medical Center) and VISN (Veterans Integrated
Service Networks) level which were part of his proficiency; and (3) he would not be able to
conduct annual inspections for CRC and HCHV programs (inspection of homes and facilities).
Complainant also alleged discrimination in reprisal for prior EEO activity when he was
subjected to harassment in that on March 4, 2009, he received a proposed removal letter; on
September 23, 2009, he received a proposed reprimand letter; and effective April 2, 2010, he
was reassigned and was taken off all committees, described above.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On November 21, 2011, the AJ issued a decision
without holding a hearing, finding no discrimination. The Agency’s final order implemented
the AJ’s decision.

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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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

Complainant claimed that on March 4, 2009, he received a proposed removal letter from his
third-line supervisor (S3), who had been his supervisor since December 2008. S3 stated that in
2007, Complainant was one of many employees who accessed the record of an employee who
was also a patient at the facility. Complainant does not dispute this. The Agency indicated
that its Administrative Investigation Board investigated some possible HIPPA (Health
Insurance Portability and Accountability) violations and Complainant was one of seven
employees involved in that. The Board found Complainant accessed the patient’s record
inappropriately. S3 indicated that although she was not at the facility at the time the incident
occurred in 2007, she just happened to be in the S3 position when it was time to give
Complainant the proposed removal letter prepared by Human Resources Management. S3
further stated that Complainant subsequently responded to the proposed action which was later
rescinded and he was ultimately not removed. The Agency found that Complainant did not
violate HIPPA rules since his assignment at the relevant time period at issue required him to
know the information of the patient, described above.

Complainant also claimed that on September 23, 2009, S3 instructed Complainant’s second-
line supervisor (S2), who had been in that position since late 2009, to issue him a proposed
reprimand letter. S3 stated that during the relevant time period at issue, there was an
altercation between Complainant and a patient. The patient went to the patient’s advocate’s
office claiming that Complainant abused him. The Board investigated the claim and
recommended appropriate disciplinary action against Complainant for his action. S3 indicated
that based on this recommendation, she delegated S2 to issue Complainant the proposed
reprimand letter. But, stated S3, S2 disagreed with the Board’s findings and instead gave
0120121192

3
Complainant a verbal warning. Thus, Complainant never received the proposed reprimand
letter.

With regard to the April 2, 2010 reassignment, S3 stated that Complainant was involved in
another investigation regarding the improper restraining of patients and she was recommended
by the Board to consider his role. During her examination of Complainant’s position, S3
discovered that Complainant was in a position that was not recognized on any organizational
chart, i.e., he had been performing quality assurance duties for the Associate Chief of Staff for
Mental Health. The Board recommended that Complainant’s position be moved from Mental
Health to the Office of Quality and Performance because he was performing duties related to
quality assurance. S3 looked into this recommendation and discovered that Complainant was
officially assigned to the Nursing Service. Complainant does not dispute this. S3 indicated
that she then contacted Complainant and the union and discovered that Complainant previously
filed an EEO case in 2002, which was settled and placed him in the Mental Health Clinic.
Based on the foregoing information and also since the Nursing Service needed Complainant,
S3 stated that she assigned Complainant to a Staff Nurse position.

Furthermore, S3 indicated that as Complainant was assigned to work a Staff Nurse position in
the Mental Health Clinic, he was removed from committees not related to that position. A
Human Resources Specialist stated that during the course of investigation of Complainant’s
assignment, the Specialist found that Complainant was not working under a position
description, but rather was doing what management in the area told him to do. Therefore, the
Specialist indicated, that Complainant was returned to the normal duties he was hired for and it
was no longer appropriate for him to be on the committees he had been on. The Specialist
stated that Complainant did not lose any pay or status; rather he was moved to a position with
specific duties and guidelines that would allow management to properly measure his
performance. In the prior position, indicated the Specialist, management was not really able to
measure his performance.

We find that the AJ properly issued a decision without a hearing in this matter. In the instant
case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Upon review, we agree with the AJ that Complainant failed
to rebut the Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. With
regard to his claim of harassment, we find that Complainant failed to establish the severity of
the conduct in question or that the incidents were related to any protected basis of
discrimination. We find that Complainant failed to show that he was treated less favorably
than a similarly situated employee under similar circumstances. Based on the foregoing, we
find that Complainant has failed to show that the Agency’s actions were motivated by
discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.
0120121192

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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.

0120121192

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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

March 26, 2013
Date