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

Equal Employment Opportunity Commission

May 1, 2013

0120114076 (E.E.O.C. May. 1, 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. 0120114076

Hearing No. 440-2011-00064X

Agency No. 200J-0537-2010102416

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
April 11, 2012 final Agency decision (FAD) 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’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Diagnostic
Radiologist Technologist at the Jesse Brown Medical Center in Chicago, Illinois. On May 10,
2012, Complainant filed a formal complaint alleging that the Agency discriminated against and
subjected her to a hostile work environment in reprisal for prior protected EEO activity as
evidenced by multiple incidents including, inter alia, she received a Letter of Inquiry and a
Letter of Counseling for not responding to her pager on several occasions in March 2010, she
received a seven-day suspension for her alleged failure to perform her duties; and she received
a Letter of Inquiry regarding the scheduling of a patient. 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.

On March 2, 2011, the AJ assigned to the case issued an Acknowledgment and Scheduling
Order. The record reveals that the Agency timely initiated discovery; however, the record
does not indicate that Complainant ever initiated discovery. Complainant failed to provide the
Agency the answers and documents requested and failed to respond to the Agency’s Motion to
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Compel. Additionally, the AJ stated that Complainant failed to file any prehearing
submissions as ordered in his Acknowledgment and Scheduling Order. On July 14, 2011, the
AJ issued an Order to Show Cause why sanctions should not be imposed for Complainant’s
failure to prosecute her case. The AJ stated that Complainant failed to timely respond, but
later submitted several documents which were not responsive to his order. As a result, the AJ
found that Complainant had not presented good and sufficient cause why sanctions should not
be imposed. Accordingly, on August 3, 2011, the AJ dismissed the hearing request for
Complainant’s failure to follow his orders and failure to prosecute her case. The AJ remanded
the complaint to the Agency and the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant had established a prima facie
case of reprisal and found that management had articulated legitimate, non-retaliatory reasons
for its actions. For example, Complainant received a Letter of Inquiry and subsequently a
Letter of Counseling for failing to respond to her pager on several occasions in March 2010.
Additionally, Complainant left her assigned area without permission on March 18, 2010. The
Acting Service Chief issued Complainant the suspension for the same reasons and based on
Complainant’s disciplinary history, which included a prior suspension for being out of her
assigned area without authorization. Complainant asserted that her pager was not functional;
however, the Acting Chief Technician tested it at the time and found that it was working.

The Agency concluded that Complainant had presented no evidence establishing that
management’s reasons for its actions were pretextual. As a result, the Agency found that
Complainant had not been retaliated against or subjected to a hostile work environment as
alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant only challenges the AJ’s decision to remand her complaint for a FAD.
Complainant alleges that she previously sent the requested submissions to the AJ and the
Agency. Accordingly, Complainant requests that her hearing request be reinstated.

ANALYSIS AND FINDINGS

As an initial matter, the Commission declines to disturb the AJ's order denying Complainant's
hearing request. The Commission finds that the AJ properly exercised his authority to dismiss
Complainant's complaint from the hearing process for failure to respond appropriately to any
of his orders. Additionally, the Commission notes that Complainant prematurely appealed the
AJ’s dismissal of her hearing request prior to the Agency’s issuance of its FAD. The Agency
subsequently issued the FAD while Complainant's appeal was pending before the Commission.
Accordingly, the Commission finds that Complainant's appeal is currently ripe for review.

Turning to the merits of the case, to establish a claim of hostile environment harassment,
Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was
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subjected to harassment in the form of unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on her statutorily protected class;
(4) the harassment affected a term or condition of employment and/or had the purpose or effect
of unreasonably interfering with the work environment and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing liability. See Henson v.
City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's circumstances.

Here, Complainant alleged several incidents of what she believed to be retaliatory harassment.
The Commission finds that Complainant failed to show that these incidents were unlawfully
motivated by retaliatory animus. More specifically, Complainant was issued the Letter of
Inquiry and, subsequently, the Letter of Counseling after she failed to respond to pages on
several occasions in March 2010 and for being away from her assigned area without
supervisory approval on March 18, 2010. ROI, at 317. Complainant claimed that her pager
was not operating on one of the days in question; but the pager was tested, found to be
working properly, and there were no reported problems with the pager during the week. Id. at
189, 317. As a result, Complainant received a Letter of Counseling.

Based on the three incidents from March 2010, Complainant was issued a proposed seven-day
suspension. ROI, at 233. After meeting with Complainant and considering her response,
management issued her a seven-day suspension for failing to perform the duties assigned to
her. ROI, at 310. The Chief Technologist noted that patient care was delayed as a result of
Complainant’s failure to respond to the pages. Id. at 234. In reaching the decision to suspend
Complainant, management considered Complainant’s disciplinary history which included a
prior three-day suspension. Id. at 260, 310.

Regarding the September 21, 2010 Letter of Inquiry, the Chief Technologist affirmed that
Complainant received a transferred call at the front desk from a patient who needed to schedule
an appointment. Instead of scheduling the appointment, Complainant transferred the call back
to the original employee who had transferred the call to her. ROI, at 236. When the call was
transferred again to the front desk, Complainant was found sitting at the computer letting the
phone ring. Id. at 309. The patient hung up by the time the call was answered and the patient
had to walk over to the department to get the appointment. Id. at 236, 309. As a result, the
Chief Technologist issued Complainant the Letter of Inquiry for the disruption in patient care.

The Commission concludes that Complainant has not shown that any of the Agency's actions
were based on retaliatory animus. Accordingly, the Commission finds that the Complainant
was not subjected to a hostile work environment as alleged. Further, to the extent that
Complainant is alleging disparate treatment with respect to her claims, the Commission finds
that she has not shown that the Agency's reasons for its actions were a pretext for reprisal. As
a result, the Commission finds that Complainant has not established that she was subjected to
reprisal or a hostile work environment as alleged.

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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 decision because the preponderance of the evidence of record 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”
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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

May 1, 2013
Date