0120132660
09-25-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
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
(Veterans Health Administration),
Agency.
Appeal No. 0120132660
Hearing No. 510-2012-00333X
Agency No. 200I-0573-2012100787
DECISION
Complainant filed an appeal from the Agency's May 23, 2013 final order concerning her equal employment opportunity (EEO) complaint. She alleged 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 accepts this appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Pharmacy Technician at the Agency's Lake City VAMC in Lake City, Florida.
On November 29, 2011, Complainant contacted an EEO Counselor and filed a formal EEO complaint on January 18, 2012, alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. From 2009 through the present, she was not allowed to attend presentations given by residents;
2. In February 2011, she was precluded from using the computer equipment in the C-11 Room;
3. On February 10, 2011, she was charged AWOL for thirty minutes;
4. In March 2011, her privileges were suspended, she was accused of being incompetent and working outside her scope as a Pharmacy Technician;
5. In August through September, 2011, she was not allowed to attend the "Stepping with Pride" program;
6. On November 28, 2011, she was not allowed to participate in mock survey teams;
7. On December 19, 2011, she was issued a written reprimand;
8. On December 20, 2011, she was accused of being on break for 25 minutes;
9. On December 27, 2011; she was told to keep the noise down;
10. On December 27, 2011, her request for thirty minutes of sick leave was denied;
11. On January 2, 2012, she was charged AWOL; and
12. On March 16, 2012, she was issued a verbal and written counseling.
The record shows the following undisputed facts. Complainant worked as a Pharmacy Technician. She also had served as a union steward and had prior EEO activity.
Claim 1 Residents' presentations
With regard to claim 1, prior to 2009, management permitted the Technicians to receive electronic communications which informed them about presentations given by Residents. Subsequently, Complainant was informed that there was a change in policy. Technicians were not to be sent the emails. The emails were sent to Pharmacists only. All Pharmacy Techs stopped receiving e-mails about presentations by residents.
Claim 2 Restrictions on use of Room C-11
The record shows, with regard to claim 2, that the drug storage area is called Room C-11. The room also has computers and printers. All Pharmacy Techs were told not to use room C-11 for printing.
Claim 3 AWOL
On February 10, 2011, Complainant was charged AWOL. Complainant was sick that day. She did not call in until 9:30 AM, which was more than two hours after the start of her shift. The policy is that employees must call in within two hours of the start of her shift. She did not identify anyone else who did the same and was not charged AWOL.
Claim 4 Suspended privileges
The record shows that a vial of a narcotic broke while under Complainant's custody. Agency policy requires that the Technicians are required to contact certain managers of the Pharmacist in charge of the area to report the matter. Complainant did not do that. Instead, Complainant pulled personnel from the Nursing Division to correct the situation. This is not the function of the Technician. Complainant did not file a Report of Contact and she left the office. Her privileges were suspended. She was also accused of working outside of her assigned duties.
After this incident, management felt that Complainant did not have sufficient knowledge of how to handle controlled substances. They stopped her controlled substance access until she received additional training.
Claim 5 Stepping with Pride Program
Complainant requested to attend the Stepping with Pride Program. The program ran for one day per month for nine months. She asked her supervisor for approval to attend. Her supervisor told Complainant that she could not attend because the unit was short-staffed. Further, Complainant was on leave restrictions and had been on a sick leave certificate.
Claim 6 Mock survey teams
With regard to claim 6, it was undisputed that no Technicians were allowed to participate in the mock survey teams in November, 2011.
Claim 7 Written reprimand
On December 19, 2011, Complainant was issued a Reprimand after she made "disrespectful, argumentative and rude statements" and used profanity in the workplace. Complainant acknowledged the conduct, but questioned why management failed to bring the matters to her attention within a day or two of the incidents.
Claim 8 Long break
On December 20, 2011, it is undisputed that Complainant was away from her work station for 25 minutes. A manager thought she was on break and said something to Complainant about it. Complainant stated that she delivered something to X-ray and then went on break. Complainant was not disciplined or counseled about the apparent long break.
Claim 9 Told to keep noise down
On December 27, 2011, Complainant and several other people were told to keep the noise down. Complainant stated that she was talking and disputed that she was laughing.
Claim 10 Same-day sick leave request denied
On December 27, 2011, Complainant submitted a request for sick leave for 30 minutes. This was a same-day request to attend a doctor's appointment. The supervisor did not grant the request.
Claim 11 AWOL
On January 2, 2012, there was a computer error with regard to scheduling. Her supervisor made an error with regard to the schedule for all the Technicians. She gave them January 2, 2012, the observed holiday off, plus January 3, 2012. This was an error and would have caused employees to get double holiday pay. It impacted all Technicians, not just Complainant. Technicians were told that they would have to work or to take leave, due to the management mistake. All of the Technicians who had the day off were treated the same, regardless of race or prior EEO activity. Complainant refused to do either. She was the only one who refused. She was charged AWOL for that day.
Claim 12 Counseling
On March 16, 2012, Complainant was issued a written counseling. She and another employee were asked to remove water bottles from a counter. The other employee removed the water bottle, without commenting. Complainant acknowledges that she muttered a comment, asking "Why are you all starting to do this now?"
During the investigation, when the investigator asked why Complainant believes that any of the alleged incidents were discriminatory, Complainant responded "I don't know." Report of Investigation (ROI) 194, 201-202.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before a United States Equal Employment Opportunity Commission Administrative Judge (AJ). After Complainant failed to respond to the Agency's Motion for Summary Judgment, the AJ issued a decision without a hearing finding no discrimination.
The AJ Decision
Without objection from Complainant, the AJ assigned to the case granted the Agency's motion for a decision without a hearing. The AJ found that Complainant "makes a number of generalized allegations that she is singled out and treated differently" but "she does not name one single proposed comparison employee." The AJ found that "there is no evidence of any similarly situated individual outside of Complainant's protected class who was treated differently."
The AJ found that Complainant failed to show that any similarly situated comparators not of her race, or who had prior EEO activity, who were treated more favorably.
The AJ also found that Complainant did not provide evidence that she was subjected to a hostile work environment. The AJ reasoned that "there is nothing in the undisputed evidence of record which indicates that any of the alleged actions of the Agency were based on race or prior EEO activity." The AJ entered judgment in favor of the Agency.
The Agency subsequently issued a final order adopting the AJ's decision.
This appeal followed.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."). 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). 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.
Disparate Treatment / Race and Reprisal
Section 717 of Title VII states that "all personnel actions affecting employees or applicants for employment in executive agencies . . . shall be made free from any discrimination based on race, color, religion sex, or national origin." Similarly, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). To prevail in a disparate treatment claim, Complainant must establish that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
With regard to the reprisal claim, the record shows Complainant had prior EEO activity and had served as a union official. With regard to claims 1-6 (not allowed to attend residents presentations, precluded from using the C-11 room, charged AWOL, privileges suspended, not allowed to attend program or participate in the mock survey team), the record does not show an adverse personnel action or actual harm to Complainant that was not shared by other similarly situated Technicians. Further, there was no nexus because the incidents at issue occurred prior to any EEO activity by the Complainant.
For purposes of our analysis of claims 5 to 12, nevertheless, we will presume that Complainant established her prima facie claims with regard to her race and reprisal claims. However, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 (1983).
The AJ found that the Agency articulated undisputed legitimate, nondiscriminatory reasons for its actions.
With regard to claim 1, the Agency stated all Pharmacy Techs stopped receiving e-mails about presentations by residents because it was not required for their job. With regard to claim 2, the Agency exercised its management authority to restrict the use of Room C-11. She was charged AWOL after she did not report in, or call, within two hours of her reporting time. Her privileges were suspended after she failed to report a lost vial of narcotics. With regard to claim 5, she was not allowed to attend the "Stepping with Pride" program because she was needed at work. With regard to claim 6, none of the Technicians participated in mock survey teams, because the mock survey teams did not apply to their occupation. With regard to claim 7, on December 19, 2011, she was issued a written reprimand after engaging in disrespectful conduct and profanity at the workplace. With regard to claim 8, she was accused by a manager of being on break for 25 minutes because she was away from her duty station and her supervisor did not know where she was. With regard to claim 9, the supervisor told Complainant and several others to keep the noise down, because the noise was disruptive. It is undisputed that her request for thirty minutes of sick leave was denied. It was a same-day request and the supervisor was not provided advance notice. With regard to claim 11, she was charged AWOL when she did not report to work or request leave. With regard to claim 12, she was issued written counseling for what the supervisor perceived was misconduct. Complainant acknowledged the misconduct.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
In this case, Complainant offered no evidence, and the record does not reflect any evidence, that challenged the Agency's stated reasons.
Looking at all of the evidence in the light most favorable to Complainant, there is no relevant evidence that would show that any of the subject actions were based on Complainant's race or reprisal for EEO activity or that would warrant a hearing on this matter.
After a careful review of the record, we agree with the conclusion of the AJ that there was no genuine dispute of material fact with regard to the claims in the instant complaint. Therefore, the Agency's decision adopting the AJ's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 25, 2015
__________________
Date
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