0120152249
09-25-2017
Sulema B.,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
Sulema B.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152249
Hearing No. 471-2013-00086X
Agency No. 200J-0655-2013100101
DECISION
On June 15, 2015, Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 12, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Social Worker - Case Manager at the Agency's Mental Health Service, Aleda E. Lutz Veterans Affairs Medical Center in Saginaw, Michigan.
On November 7, 2012, Complainant filed an EEO complaint, as amended, alleging that she was harassed based on her race (African-American), disability, and reprisal for prior protected EEO activity when:
1. On June 4, 2012, her first line supervisor (S1) made the comment "I have been hearing interesting things about you" and "I heard you like to file aggressive EEO complaints;"
2. She went to S1 who yelled at her "get out of the office;"
3. On July 5, 2012, S1 yelled at her in front of coworkers saying, "go to the union, that's all you do, as a matter of fact, I would like to see you and your union representative in my office;"
4. On July 6, 2012, S1 commented to her "If you're walking in the hallway you must not have enough work to do;"
5. On July 12, 2012, S1 commented to her "she was not seen returning from an appointment and that she must sign out where I tell you to sign out;"
6. On August 27, 2012, when she asked for help with a veteran patient, S1 said "I am not going to pay two people to do the same job, and I said no, now get out of my office;"
7. On August 29, 2012, S1 made a derogatory comment about her saying she was not someone you want to be seen with and told her to "Shut up, you are always whining about something;"
8. On September 4, 2012, she was placed on sick leave restriction;
9. On September 4, 2012, she received a written counseling regarding her performance;
10. On September 5, 2012, she received a written counseling for conduct;
and reprisal for prior EEO activity when:
11. On or about September 23, 2013, the Agency refused to provide her with the employee health form needed for medical and leave purposes;
12. On or about September 23, 2013, the Agency refused to provide her with a CA-1 form needed for medical, pay status and leave purposes;
13. On or about September 23, 2013, the Agency placed her on absence without leave (AWOL) after she requested Family Medical Leave Act (FMLA), leave without pay (LWOP), Advance Sick and Annual leave from her immediate successor first line supervisor (S2);
14. On or about October 7 and 8, 2013, the Agency provided her personal work information to another employee; and
15. On or about October 9, 2013, the Agency disabled her computer to prevent her from retrieving important information needed for finance and leave purposes.
Prior to the completion of the Agency's investigation into the complaint, Complainant timely requested a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). The AJ held a hearing and 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.
On incidents 1 - 7 the AJ, making credibility determinations, as applicable credited S1's testimony and found Complainant's testimony incredible. On incidents 8 - 10, the AJ found S1 took these actions for the reasons in the memos notifying Complainant of such, crediting S1's testimony. On incident 11, crediting S2's testimony, the AJ found that S2 did not refuse to provide Complainant the form. On incident 12, the AJ credited S2's testimony that the Agency initially gave Complainant an Office Workers' Compensation Programs (OWCP) CA-2 because at the time she claimed an illness, as opposed to an injury where the CA-1 form is used. On incident 13, the AJ credited S2's testimony that he placed Complainant on AWOL, as advised by Human Resources, because she was not in consistent contact with the Agency when she was out and later Human Resources advised him to change the AWOL to LWOP. Incident 14 regarded Human Resources asking a former union steward, who had just been voted out, to contact Complainant and let her know she was in AWOL status and should call S1. The AJ found that Complainant failed to offer evidence of how this incident subjected her to discrimination based on her race, disability, or prior EEO activity. On incident 15, the AJ credited the testimony of an Agency Information Security Officer that Complainant's access to her computer was cut off because she did not comply with the requirement to take annual security training. In sum, the AJ found that Complainant lacked credibility and failed to prove she was subjected to harassment or a hostile work environment based on her race, disability, or EEO activity.2
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 as alleged.
On appeal, Complainant argues that the AJ was biased, and wrongly denied her motions for the AJ to recuse herself or change venue (to have a different AJ). Complainant has not shown that the AJ abused her discretion in denying these motions.
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
September 25, 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 The AJ found that Complainant failed to specifically identify her disability and how any impairments limit a major life activity, and hence failed to show her disability is covered by the Rehabilitation Act. We need not rule on this matter. The AJ, in effect, went on to assume for purposes of analysis that Complainant had a disability when in her factual findings she determined the alleged incidents making up the harassment claim were not motivated by disability bias; which is supported by substantial evidence.
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