0120152153
10-13-2017
Mirtha H.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mirtha H.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152153
Hearing No. 570-2012-00941X
Agency No. 200406882012100211
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's May 6, 2015 final order concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Agency's Medical Center facility in Washington DC.
On January 31, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability2 (disorder of the bursae and tendons of the shoulder region; bilateral sprain of shoulder and upper arm) and reprisal for prior protected EEO activity when:
1. On October 1, 2011, the Nurse Manager (NM: no claimed disability) spoke to Complainant in a disrespectful tone, micro-managed her duties, directed Complainant to perform administrative tasks and not provide assistance to a patient;
2. On October 1, 2011, NM directed Complainant not to utilize the speaker phone during communications with the nursing station area;
3. Effective October 1, 2011-ongoing, NM and/or the Workers' Compensation Program Manager (PM: unspecified disability) required Complainant to perform tasks and activities that were not within Complainant's light duty restrictions;
4. Effective October 1, 2011 and ongoing, management delayed the processing of Complainant's paperwork regarding her OWCP claim;
5. Effective October 1, 2011-ongoing, management improperly processed Complainant's leave requests which resulted in loss of pay.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing and the AJ subsequently issued a decision by summary judgment in favor of the Agency.
The Agency issued its final order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
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 and we find that, even construing any inferences raised by the facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor.
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of disparate treatment with regard to claims 3 and 5. With regard to claim 3, the Agency articulated legitimate nondiscriminatory reasons for its action when NM and PM denied requiring Complainant to perform activities outside of her light duty restrictions. See Report of Investigation (ROI), Tab B2, pp. 36-7, Bates Stamp 00129, & Tab B3, p. 30, Bates Stamp 00142. With regard to claim 5, NM averred that he did not know what leave requests Complainant was referring to and that while she told him she held him responsible for her loss of pay, she never specified any incident that occurred during the time period covered by this claim. See ROI Tab B2, pp. 44-6, Bates Stamp 00131-2.
The burden next shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a pretext. See Hicks; Burdine; McDonnell Douglas. Complainant did not provide an affidavit during the investigation despite numerous attempts to obtain a statement from her and has thus not shown that the Agency's articulated reasons for its actions are pretextual. See ROI, Tab B1, Bates Stamp 00119.
On appeal, Complainant argues that the AJ improperly declined to consider witness affidavits supporting her claim that she was required to perform activities outside of her medical restrictions. The AJ ruled that the statements in question were gathered "months after the close of discovery in this case. Moreover, none of said witnesses were mentioned in the ROI or interviewed during the investigation, and the Agency did not have the opportunity to assess said evidence. Accordingly the witness statements are inadmissible." AJ Decision, p. 17. We note that AJs have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, issue sanctions or permit or compel the testimony of witnesses. See 29 C.F.R. � 1614. 109. We find that Complainant has not shown that the AJ abused her discretion in this regard.
Finally, to the extent that complainant is alleging that she was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that claims 3 and 5 may not form part of complainant's claim of hostile work environment based on our finding that complainant failed to establish that any of the actions taken by the agency in claims 3 and/or 5 were motivated by discriminatory animus or retaliatory motive. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994): Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
Regarding the remaining three claims, we find that complainant failed to show that she was subjected to unwelcome verbal or physical conduct involving her protected classes, that the harassment complained of was based on her statutorily protected classes, and that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
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 evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
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 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 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
October 13, 2017
__________________
Date
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.
2 For purposes of this decision the Commission assumes without finding that Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152153
2
0120152153