0120122382
03-27-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122382
Hearing No. 450-2011-00036X
Agency No. 200P-0756-2010102665
DECISION
On May 9, 2012, Complainant filed an appeal from the Agency's April 24, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Psychiatrist at the Agency's Veterans Administration Health Care System facility in El Paso, Texas, serving a two-year probationary period.
On May 13, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (East Indian), national origin (Indian), sex (female), religion (Muslim), color (White), disability (knee surgery in February 2010), and age (55) when:
1. On July 27, 2009, she was threatened with disciplinary actions, to include firing and reporting her to the medical board that could lead to the loss of her medical license.
2. During her tenure at the Agency, her supervisor (Supervisor) insulted her, gave her reports of contact and made false allegations against her.
3. During her tenure at the Agency, management ignored her complaints that fellow staff members were calling her by the wrong name.
4. On November 6, 2009, she was called into the Supervisor's office, told that she was disruptive and given a report of contact.
5. On November 5, 2009, Complainant submitted her resignation, but was convinced by Human Resources personnel to withdraw it and remain at the Agency until she could be transferred to the Agency's Battle Creek, Michigan, Health Care System ("Battle Creek").
6. In February 2010, Complainant learned that due to negative references provided by management, she was not offered a position at Battle Creek.
7. On February 23, 2010, the Supervisor approved only three days of Complainant's one-month sick leave request to recuperate from knee surgery.
8. On April 23, 2010, management informed Complainant that unless she resigned, it would schedule a Summary Review Board ("SRB") in order to terminate her and would notify the state's licensing authority.
9. On April 27, 2010, fearful of being reported to the medical board for malpractice, Complainant was forced to resign her position.
10. On or about April 27, 2010, Complainant learned that her request for unemployment benefits was denied because she had resigned her position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed its motion requesting a decision without a hearing on January 20, 2011.1 Complainant responded on February 12, 2011. On March 16, 2012, the AJ assigned to the case issued a decision by summary judgment in favor of the Agency.
The AJ determined that there were no material facts in dispute. She noted that Complainant failed to provide any evidence to show that the Agency's actions were motivated by discriminatory animus. When she was asked during the investigation of the matter why she believed management was treating in this manner, Complainant responded with, "what else could it be?" Further, the AJ noted that Complainant's objections to a decision on the record did not set forth material issues of fact in genuine dispute.
To the extent Complainant alleged disparate treatment with respect to her claim of constructive discharge, the AJ determine that Complainant had not shown that she was subjected to working conditions that were intolerable. Even if Complainant had done so, the AJ noted that Complainant failed to present any evidence that the events occurred due to her protected bases. In making this finding, the AJ indicated that Complainant was told by other management officials, not the alleged discriminating officials (the Supervisor and the Second Line Supervisor) that if she resigned the SRB would not be held. Further, the Agency handbook and the notice of the SRB stated that a resignation during an investigation must be reported to the National Practitioner Data Bank (NPDB) and state licensing board. In fact, the AJ determined that it was Complainant who provided conflicting testimony regarding resigning prior to the SRB. She stated that it would not be held if she resigned but then later indicated that she was aware that the SRB would still go forward after her resignation. Based on the record, the AJ concluded that Complainant resigned, not as a result of the intolerable condition, but due to her desire not to face the SBR.
The AJ then turned to Complainant's claim that she was subjected to a hostile work environment. Complainant asserted that she was "threatened" with disciplinary action in July 2009, but failed to identify the individual. It was noted that the Supervisor did not arrive at the facility until August 2009. As to her claim that she was insulted by the Supervisor and given reports of contact and false allegations, Complainant only provided one report of contact from the Supervisor. As for the leave request, Complainant failed to provide evidence to support her need for additional leave. In fact, the AJ indicated that the evidence in the record showed that Complainant could return to work after three days on modified duty.
Further, the AJ noted that the record showed that Complainant's demeanor and competency were questioned due to complaints from patients and coworkers. The AJ indicated that Complainant did not present evidence that the complaints from the patients and coworkers were unwarranted. Complainant complained that on one occasion, a clerk called her "Dr. Salami" instead of her real name and she was not aware if management took any action against the clerk. Complainant asserted that she was being told that she was disruptive on November 4, 2009. The Agency provided evidence that Complainant's coworkers had complained to management about Complainant's behavior particularly during a staff meeting. The Supervisor was contacted by the Battle Creek Chief of Staff and she provided what she believed to be an honest assessment of Complainant's abilities. The Second Line Supervisor informed the Battle Creek Chief of Staff about the SRB that was going to be conducted. The Agency indicated that the SRB would be held due to the high number of complaints from patients and staff regarding Complainant's competence and behavior including her disruption during a staff meeting and refusal to follow a direct order. The AJ determined that Complainant did not provide any evidence to demonstrate that the Supervisor and the Second Line Supervisor provided inaccurate information. The AJ held that the Agency provided legitimate, nondiscriminatory reason for the SRB which Complainant did not show was pretext to mask discrimination.
Finally, as to Complainant's claim that she was forced to resign, the AJ indicated that she already determined that the resignation was voluntary.2 Taking the events as a whole, the AJ determined that Complainant failed to show that the alleged events were so severe or pervasive to demonstrate that she was subjected to harassment or that the alleged harassment occurred because of her membership in her protected groups.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS
Summary Judgment
We must 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. A review of the record shows that it was adequately developed during the investigation. 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. Here Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
Harassment
It is well-settled that harassment based on an individual's age, race, sex, religion, color, national origin, and disability is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes; (2) she was subjected to unwelcome conduct related to her membership in those classes; (3) the harassment complained of was based on age, race, sex, religion, color, national origin, and disability; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. 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. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that Complainant has failed to provide any support for her claim that the alleged events occurred because of her protected bases. The only proof Complainant provided was her mere assertion that her protected bases were the reason for the actions of the Supervisor and the Second Line Supervisor. Without any evidence to support her claim, we cannot find that the events constituted unlawful harassment. In addition, taking the events as a whole, Complainant has not demonstrated that the alleged events were of a sufficient nature to constitute a hostile work environment. Therefore, we find that the AJ's decision finding no harassment was appropriate.
Constructive Discharge
The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in Complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995).
Upon review of the record, we find that the AJ correctly determined that the Complainant failed to show that the resignation was involuntary. The record does not substantiate Complainant's claim that the working conditions were so intolerable that they forced her resignation. As noted by the AJ, Complainant chose to resign voluntarily based on her fear of the SRB. Furthermore, Complainant did not provide any evidence to support her assertion that the alleged conduct constituted discrimination. Therefore, we conclude that the AJ correctly held that Complainant failed to show that her resignation was a constructive discharge.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision without a hearing 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 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 27, 2015
__________________
Date
1 We note that the copy of the Agency's motion is dated January 20, 2011. However, the AJ's decision cites January 11, 2011 as the date of the Agency's motion for a decision without a hearing.
2 The AJ dismissed Complainant's claim regarding unemployment benefits for that determination was made by the state of Texas, Department of Labor. The AJ determined that this claim constituted a collateral attack on the state's Department of Labor.
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0120122382
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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