Nerissa S, Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 22, 2017

0120151283 (E.E.O.C. Aug. 22, 2017)

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

Nerissa S,
Complainant,

v.

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

Appeal No. 0120151283

Hearing No. 480-2012-00545X

Agency No. 200P-0691-2011104590

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 6,
2015, 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. 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 Diagnostic
Radiologic Technologist at the Agency’s facility in Los Angeles, California. On November 2,
2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on
the bases of her sex (female), disability, and age when:

1. from 2005 to July 1, 2011, management required her to work eight or more hours
without being relieved for meal breaks;
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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2. on July 19, 2011, her supervisor (S1) disapproved her leave request and charged her
as being absent without leave (AWOL); and
3. on July 26, 2011, S1 again disapproved her leave request and charged her as being
AWOL.

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 requested a hearing. The AJ
found that, after viewing the evidence in a light most favorable to Complainant, a decision
without a hearing was appropriate as there were no genuine issues of material fact in dispute.
The AJ issued a decision without a hearing on December 22, 2014, finding no discrimination.
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. On appeal, Complainant
reiterates her contention that she was subjected to unlawful discrimination when she was denied
meal breaks.

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

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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 sex,
disability, and age discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the record shows that, with respect to
claim (1), as a Diagnostic Radiologic Technologist (DRT), Complainant was responsible for
conducting chest x-rays for the medical and surgical intensive care units, and that the exam
schedules were unpredictable as they were dependent on emergency need. S1 states that when
multiple employees are scheduled to work the same hours, the floor supervisor is responsible for
scheduling breaks so that employees are not taking breaks at the same time. S1 also states,
however, that Complainant was scheduled to work the weekend midnight shift on her own and
was, therefore, responsible for taking her breaks when possible so that they were not taken when
exams had to be processed. S1 states that Complainant’s weekend shift was rarely busy and that
generally the number of exams needing to be processed tapered off after 2 am, leaving
Complainant sufficient time to take breaks. Additionally, S1 states that Complainant never
submitted a request for overtime for any shifts when she did not take a break; nor does he recall
her ever raising the issue of breaks with him prior to her filing the instant complaint. We find
that it is clear from the record that when Complainant was the only DRT on duty, she was
responsible for taking her breaks when work permitted. It is also clear from the evidence of
record that there were times during her shifts that would have allowed for her to take meal
breaks. Complainant has proffered no evidence to show that her failure to take meal breaks on
the dates alleged was cause by management action or was motivated by discriminatory animus
toward her protected classes.

With respect to claims (2) and (3), the record shows that on June 13, 2011, Complainant was
approved to take leave under the family and medical leave act (FMLA) in order to provide care
for a family member. The record also shows that Complainant’s approved FMLA was limited to
two absences per month. Complainant requested FMLA on July 5 and 12, 2011, which was
approved. When Complainant subsequently requested FMLA for July 19 and 26, 2011, S1
disapproved the requests because Complainant had already used the two approved FMLA days
earlier in the month. We find that Complainant has not proffered any evidence to show that the
Agency’s articulated reasons for its actions were a pretext for unlawful discrimination.

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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 finding no discrimination is AFFIRMED.

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.

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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

August 22, 2017
Date