0120150146
03-29-2017
Polly P.,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
Polly P.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150146
Hearing No. 410-2013-00353X
Agency No. 200105342012103080
DECISION
On October 4, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 4, 2014, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the FAD properly found that Complainant failed to establish that she was subjected to discrimination based on reprisal for prior EEO activity when: (1) on or about April 11, 2012, a Human Resources Specialist "intentionally and maliciously" repeatedly failed to provide the required information to the Office of Personnel Management (OPM) that resulted in a four month delay in Complainant receiving retirement payments; and (2) on or about April 11, 2012, Complainant was informed that the same Human Resources Specialist provided erroneous information to OPM resulting in Complainant only receiving a partial retroactive retirement payment, five months after it was approved.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a retired Information Technology Specialist, GS-11, at the Agency's VA Medical Center facility in Charleston, South Carolina. Complainant departed the Agency in October 2009, pending disability retirement, but her disability retirement was not approved until January 2012, because of an appeal she filed with the Merit System Protections Board (MSPB). The FAD clearly articulates the series of applications, denials and appeals filed regarding Complainant's disability retirement claim. This decision incorporates those facts by reference and will not reiterate them.
Complainant officially resigned from her position with the Agency on January 6, 2011, and her payroll records were forwarded to OPM at that time. Complainant contends that once her disability retirement was approved in January 2012, she contacted OPM and was informed that they were waiting on the paperwork from her Agency. She contacted them again in February and March of 2012 and received the same response.
The record reflects that on April 3, 2012, an OPM Management and Program Analyst (Program Analyst) in the Disability, Reconsideration and Appeals Office, and a Human Resources Specialist (HR Specialist) from the Agency's Human Resources office spoke via telephone. The HR Specialist advised the OPM Program Analyst that she received the previous OPM request regarding Complainant's retirement, but that the request had "slipped by her." During this conversation, the HR Specialist advised OPM of Complainant's last day of service as October 12, 2009. She agreed to gather the necessary documents and forward them over that day. The HR Specialist mailed all the requested documents on April 16, 2012.
In May 2012, Complainant received her retroactive back payment for disability retirement, but it was less than expected as OPM calculated the payment based on a last day of service date of October 12, 2011, instead of October 12, 2009. In a letter dated May 23, 2012, from the Agency's Human Resources Office, the Agency acknowledged the error stating that "there was evidently an error in the date provided" to OPM. The letter noted the correct date and the payment was processed correctly.
On June 19, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on reprisal for prior protected EEO activity under Title VII as articulated in the statement of Issues Presented above. After 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 but on July 17, 2014, the AJ denied the hearing request upon determining that Complainant waived her right to a hearing due to her failure to comply with the AJ's Acknowledgement and Order. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD held that Complainant offered nothing more than her assertion regarding the Human Resources Specialist's motive regarding the alleged discriminatory actions. The decision found that these assertions, without more, were insufficient to establish that discrimination had occurred.
CONTENTIONS ON APPEAL
On appeal, Complainant through her representative, requests that the FAD be reversed and the matter remanded for a hearing. Complainant contends that there are material facts in dispute in the instant matter, and therefore the AJ erred in remanding the matter for a FAD instead of conducting a hearing. In response to Complainant's appeal, the Agency states that the FAD should be upheld as it thoroughly and accurately details the relevant facts, and applied the appropriate legal standards to those facts.
STANDARD OF REVIEW
As this is an appeal from a 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII cases alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he 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).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal for prior EEO activity, we find that the Agency articulated a legitimate, non-discriminatory reasons for its alleged discriminatory actions. The record is void of any evidence that Complainant's delayed and incorrect retirement payments were motivated by any discriminatory animus.
The Agency's Human Resources Specialist acknowledges that she handled Complainant's disability retirement. She indicated that, usually, OPM will notify her office when a disability retirement has been approved, and she will then advise OPM of the last day of pay for the employee. In the instant matter, Complainant resigned from her position approximately one year before her disability retirement was approved, and had stopped working for the Agency approximately 15 months prior to her resignation date. The Human Resources Specialist stated that the lag in dates and the processing of Complainant's various applications and appeals are likely what caused the error in reporting and the incorrect payment. It is unclear from the record whether the Agency or OPM was responsible for the mistake in the last date of pay used to calculate Complainant's payment.
To establish pretext, Complainant maintains that the errors made surrounding her disability retirement were not errors, but rather intentional acts of discrimination by the Human Resources Specialist. Upon review of the record, we find that there is no persuasive evidence in the record to support Complainant's contention. We note that the Agency corrected the mistakes once it was placed on notice of the errors and ensured that Complainant received the correct amount of pay.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly found that Complainant failed to demonstrate she was subject to discrimination as alleged; the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
_3/29/17_________________
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.
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