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

Equal Employment Opportunity Commission

Feb 7, 2013

0120111394 (E.E.O.C. Feb. 7, 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. 0120111394

Hearing No. 461-2010-00010X

Agency No. 200L06292009102162

DECISION

Complainant filed an appeal from the Agency’s December 16, 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant Chief
of Pharmacy at the Agency’s Southeast Louisiana Veterans Affairs Health Care System in New
Orleans, Louisiana. Complainant contacted an EEO Counselor and filed an EEO complaint on
June 26, 2009, alleging that the Agency discriminated against her on the bases of race
(African-American), sex (female), and in reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when:

1. On February 23, 2009, a proposed demotion that was issued to Complainant
was mitigated to a 13-day suspension effective March 1, 2009 to March 13,
2009; and

2. On March 18, 2009, Complainant was not allowed to perform the full range of
duties of Assistant Chief of Pharmacy.

At the conclusion of the investigation, Complainant was provided a copy of the investigative
file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ granted the
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Agency’s Motion for a Decision without a Hearing, and issued a decision without a hearing
finding no discrimination.

In her decision, the AJ concluded that Complainant failed to establish a prima facie case of
discrimination based upon her race or sex. Specifically, the AJ found that Complainant did not
identify any similarly situated employee, not in her protected groups, who was treated any
better than she was treated under the same circumstances. The AJ considered E1, an employee
with whom Complainant sought to compare herself. The AJ found that E1 was not similarly
situated because E1 and Complainant had different job titles and different roles with respect to
management. Complainant, the AJ found, was in a supervisory role and properly held to a
different and higher standard than E1. The AJ also found the evidence showed that the Agency
had investigated Complainant’s claim that E1 had engaged in the same practice for which
Complainant was disciplined, and that the claim was not substantiated.

The AJ further found that Complainant did not show that the reasons articulated by the Agency
for its actions were a pretext, and so, Complainant did not establish that reprisal more likely
than not motivated the Agency’s actions described in claims (1) and (2). Specifically, the AJ
found that Complainant stated that she had not failed to follow the Agency’s policy regarding
the dispensation of “partial” refills of pain medications to patient X. The AJ, in her decision,
assumed this was true, but found that the Agency had a good faith belief that Complainant had
violated its policy, and accordingly imposed discipline (mitigated to suspension) and also
removed Complainant from acting in her supervisor’s position (during the supervisor’s
absence) for the reason that the Agency believed the violation to have occurred. The AJ found
Complainant did not establish that the Agency’s reasons were pretext.

The AJ found that drawing all reasonable inferences in Complainant’s favor, that Complainant
had failed to show that she was subjected to discrimination as alleged. The Agency’s final
action implemented the AJ’s decision.

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
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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 the instant case, we find the AJ properly issued her decision without a hearing. We find, as
did the AJ, that E1 and Complainant are not similarly situated for purposes of analysis with
regard to their responsibility. Rather, we concur with the AJ, that the Agency’s reasons for
holding Complainant to a higher standard regarding the control of medication dispensation
were not shown to be false. We find that Complainant failed to establish a prima facie case of
race or sex discrimination. We further find that Complainant does not dispute that she acted as
alleged, only that her actions were not in violation of any policy. Assuming this is true, we
find no evidence supporting her contention that reprisal or race or sex discrimination
motivated the Agency, rather than its belief that she had violated the Agency’s policy regarding
the dispensation of controlled medications.

CONCLUSION

We AFFIRM the Agency’s Final Order, finding no discrimination.

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
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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

February 7, 2013
Date