Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 22, 2015

01-2013-0460-0500 (E.E.O.C. Jul. 22, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120130460

Hearing No. 510-2012-00132X

Agency No. 200I05732011102214

DECISION
On October 19, 2012, Complainant filed an appeal from the Agency’s September 26, 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

. The Commission deems the appeal timely and accepts
it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency’s final order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nursing Assistant
at the Agency’s VA Medical Center facility in Lake City, Florida. On June 17, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against her in
reprisal for prior protected EEO activity when on March 4, 2011, management detailed her
from Nursing Home Care Unit 3 to Unit 1.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
On September 21, 2012, when Complainant did not object, the AJ assigned to the case granted
the Agency’s motion for a decision without a hearing. 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.

0120130460

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ANALYSIS AND FINDINGS
As an initial matter, we note that, as this is an appeal from a final decision issued without a
hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). 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 102, 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,
it is not appropriate for an AJ to issue a decision without a hearing. In the context of an
administrative proceeding, an AJ may properly issue a decision without a hearing only upon a
determination that the record has been adequately developed for summary disposition. Petty v.
Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of
the Army

, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. To prevail in a disparate
treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that she was subjected to an
adverse employment action under circumstances that would support an inference of
discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc

., 530 U.S. 133 (2000).
Here, we find that assuming, arguendo, Complainant established a prima facie case of reprisal
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, the record shows that the Nursing Service staff are “floated” or assigned
to other clinical settings when needed in order to have the appropriate staffing coverage. Each
unit maintains a roster to ensure a fair rotation of staff. At the time of events giving rise to this
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complaint, the facility experienced an influenza outbreak causing a staff shortage. On March 4,
2011, Complainant and another employee (CW1) were floated to Unit 1 for four days in order
to help fill this shortage. This unit was under quarantine and once an employee is assigned to a
quarantined unit they cannot return to their original unit until the quarantined unit is given the
all clear. Complainant alleges this action was discriminatory because she was picked out of
turn of the rotation list. Complainant’s supervisor (S1), however, stated that Complainant and
CW1 were selected because they worked eight-hour shifts for four days straight while all other
available employees worked twelve-hour shifts for two days. Floating Complainant and CW1
allowed the Agency to only have two employees quarantined rather than four. Accordingly, we
find that Complainant has not shown that the Agency’s actions were motivated by discriminatory
animus.

CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order 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
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4
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

Date
July 22, 2015