Hyman W.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 15, 2017

0120162070 (E.E.O.C. Jun. 15, 2017)

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

Hyman W.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120162070

Hearing No. 540-2014-00180X

Agency No. 200P-0678-2013104660

DECISION

Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s April
26, 2016, final order concerning an 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.

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Patient Services Representative at the Southern Arizona Veterans Affairs Health Care System
in Tucson, Arizona. On November, 15, 2013, Complainant filed an EEO complaint alleging
discrimination by the Agency on the bases of national origin (Hispanic) and sex (male) when: (1)
on March 14, 2013, Complainant was instructed to follow a chain of command while others were
not required to do so; (2) on July 2, 2013, evidence was withheld in order to support
Complainant’s two-day suspension; (3) on July 3, 2013, Complainant’s supervisor (S1) falsely
stated that Complainant failed to report a system glitch; (4) on July 12, 2013, S1 wrongly
declared that Complainant’s EAS Registry had been suspended due to six months of inactivity;
(5) on July 12, 2013, S1 proposed disciplinary action be taken against him, citing three different
charges; (6) on July 12, 2013, Complainant’s second-in-line supervisor (S2) believed S1 about
Complainant’s failure to report a system glitch; (7) on July 12, 2013, S2 believed S1 that

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Complainant had not entered data onto the EAS Registry for a period spanning six months; (8)
on July 12, 2013, S2 believed S1 regarding Complainant’s six months of inactivity on the EAS
Registry; (9) on July 12, 2013, S2 accepted as accurate that Complainant did not scan 47
environmental letters; (10) on August 8, 2013, S2 approved a request for disciplinary action
against him; (11) on August 8, 2013, Complainant was issued a two-day suspension; and (12) on
October 29, 2013, Complainant was informed that he needed to be one-hundred percent error
free in all his duties.

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant
timely requested a hearing. On July 28, 2015, the AJ issued an Order partially granting
Summary Judgment in favor of the Agency on Complainant’s harassment claim. However, she
allowed the sole issue of whether Complainant was discriminated against based on sex and
national origin when he was given a two-day suspension (Claim 11) to go to a hearing.
Following a two-day hearing, the AJ subsequently issued a decision in favor of the Agency.

The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove
discrimination as alleged. The instant appeal followed.

Claims 1-10 and 12
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

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. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that
the agency was motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a dispute. Even construing any inferences raised by the undisputed facts in favor
of Complainant, a reasonable fact-finder could not find in Complainant’s favor.

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
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evidence did not establish that Complainant was subjected to a hostile work environment and/or
discriminated against by the Agency as alleged with respect to Claims 1-10 and 12.

Claim 12

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that substantial evidence of record supports the AJ’s
determination that Complainant has not proven discrimination by the Agency with respect to the
suspension claim as alleged.

Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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
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Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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
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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

June 15, 2017
Date