0120130729
03-10-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130729
Hearing No. 430-2009-00064X
Agency No. 2004-0637-2008101904
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 25, 2012 final order concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Chief of Pharmacy Service at the Agency's Veterans Affairs Medical Center in Asheville, North Carolina.
On April 1, 2008, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of sex (male) and age (over 40) when:
1. on February 22, 2008, he was given a letter of unacceptable performance; and
2. on March 4, 2008, he was constructively discharged when he resigned from his position.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On October 17, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Prior to the arrival of the Interim Chief of Staff, Complainant had received excellent ratings (the second highest possible rating) on his annual performance evaluation covering the time frame from October 1, 2005 until September 30, 2006. The AJ noted, however, the narrative summary of the evaluation memorialized that Complainant had encountered difficulties ensuring proper telephone coverage but the summary further noted that appropriate adjustments had been made.
Further, the AJ noted that on June 4, 2004, the Interim Chief of Staff, also Complainant's supervisor, emailed Complainant with her concerns about a lack of telephone support and poor morale in Pharmacy Service. Specifically, the Interim Chief of Staff suggested Complainant to thank some of his staff for the things that the staff members were doing correctly. The supervisor also volunteered to write notes to some of the staff if Complainant would provide the supervisor with feedback on which staff members should receive positive feedback.
The AJ noted that on June 13, 2007, a Controlled Substance Inventory Discrepancy Report was issued. This report indicated that Pharmacy Service needed to take immediate specific actions to strengthen the inventory management process. For instance, the report stated that some controlled substance medications had shortage discrepancies which had occurred despite implementation of a stringent inventory count and control process which had been required after earlier noted discrepancies in March 2007. Due to the drug shortages, the Police Service initiated an investigation. The AJ noted that on July 5, 2007, the supervisor emailed Complainant regarding several concerns, including staff morale and controlled substance counts which needed to be discussed with her.
On July 16, 2007, the record shows the supervisor issued a written Admonishment to Complainant based on the following stated factors: (1) failure to follow procedures, and (2) failure to ensure staff compliance with the implemented changes in dispensing and inventory management of controlled substances. In his July 26, 2007 response to the Admonishment, Complainant acknowledged the controlled substance discrepancies needed to be reported to the U.S. Drug Enforcement Administration (DEA) and that it was not done in a timely manner. Complainant contended that he was not aware that the procedures had changed, which placed this reporting responsibility upon him. However, Complainant acknowledged that he had been informed by the supervisor by no later than March 20, 2007, that it was his responsibility to submit the information regarding the shortage of controlled substances, but he did not provide the information until March 26, 2007.
The AJ noted that Complainant also asserted that more time was needed to develop and educate the staff in the procedural changes which were required to curb the inventory accounting discrepancies. Complainant contended that the changes in pharmacy operating procedures concerning the pharmacy vault did not come into question until May 2007, and he signed off the official changes to the procedures on June 13, 2007.
The AJ noted although Complainant wanted additional time to educate his staff, Complainant had already had approximately one month before the Admonishment was issued on July 16, 2007, in which to educate his staff and ensure compliance with the new procedures. The AJ noted counting from May 2007 until the Admonishment was issued on July 16, 2007, an even longer period had transpired, yet there remained concerns over the inventory control of substance medications. The supervisor said that Complainant was disorganized and "begging forgiveness for things" on a daily basis. She also said that Complainant "did not follow up on an action plan that we had written together in July of 2007. There were approximately eight items on the action plan, and the way that it was written was in a supportive way with multiple people that he said were obstructing his ability to do his job."
On February 22, 2008, the supervisor issued Complainant a Notification of Unacceptable Performance/Opportunity to Improve ("PIP"). The AJ noted in her affidavit, the supervisor stated that there were "multiple" reasons for giving Complainant the unacceptable performance letter: Complainant had failed to provide his staff with a clear prioritization of duties; his staff was increasingly expressing a lack of confidence in his leadership; the problems associated with the accountability of medications; and the failure of Complainant to call back two interested pharmacists for interviews in February 2008. The supervisor stated that the PIP was meant as a way to explain her expectations clearly and help Complainant improve his performance.
On March 4, 2008, Complainant submitted his resignation. Complainant's replacement was also male. The supervisor contacted Complainant after he submitted his resignation to ascertain whether he would reconsider his decision, but he declined to rescind his resignation. She let him know that he could return to either his position as Chief of Pharmacy Service or to a pharmacist position, but he declined both opportunities.
Based on these facts, the AJ found no discrimination. The AJ concluded that even if Complainant established a prima facie case of sex discrimination, the AJ articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination.1
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
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.
On appeal, Complainant, argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Complainant has argued on appeal that the AJ erred in concluding he had not established a prima facie inference of sex discrimination, particularly because he was replaced with a male. However, even if we were to assume that Complainant had established a prima facie inference, the AJ and the record fully support a determination that the responsible management official has articulated legitimate, non-discriminatory reasons for the issuance of the unacceptable performance letter/PIP, which Complainant did not prove, by a preponderance of the evidence, was a pretext designed to mask sex discrimination.
Constructive Discharge
Constructive discharge occurs when an employee resigns from his or her employment because he or she is being subjected to unlawful employment practices. If the resignation is directly related to the Agency's unlawful employment practices, it is foreseeable consequences of those practices and constitutes a constructive discharge. The Agency is responsible for a constructive discharge in the same manner that it is responsible for the outright discriminatory discharge of a complainant. To establish that she was constructively discharged from her position, Complainant must show (1) that her resignation resulted from the Agency's actions, (2) that the Agency's actions were discriminatory, and (3) that a reasonable person in her situation would have found the Agency's actions intolerable. See Maipass v. Department of Veterans Affairs, EEOC Request No. 05920527 (July 20, 1992). Therefore, to establish that she was constructively discharged, Complainant must first show that the Agency's actions were discriminatory.
We concur with the AJ that substantial evidence supports that Complainant has not shown that the Agency management engaged in discriminatory actions which became so intolerable that he had no choice but to resign. As discussed above, the Agency established legitimate, nondiscriminatory reasons for its actions. We also note that after Complainant notified the Agency that he was planning to quit his job, his supervisor asked Complainant to reconsider and offered to retain him in his Chief position or in a staff pharmacist position.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
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
March 10, 2015
__________________
Date
1 The record reflects that Complainant withdrew age as a basis.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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