0120172875
07-24-2018
Alycia R.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alycia R.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120172875
Hearing No. 541201400107X
Agency No. 200P05752013103594
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 27, 2017, final order concerning her equal employment opportunity (EEO) complaint. She alleged 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physician, General Surgeon, GS-15, at the Agency's Grand Junction, VA Medical Center facility in Grand Junction, Colorado.
On September 30, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of her sex (female) when:
1. On August 10, 2012, the Section Chief of Sub-Specialty Surgery caused Complainant extreme stress by telling her she was about to be fired, that "they were putting together a severance package for her, and that she had better sign it."
2. In late April 2013 or early May 2013, at a weekly staff meeting, the Chief of Surgery Services (Chief) slammed his fist on the conference table and yelled at Complainant after Complainant expressed her concerns about the addition of a 1:00 p.m. round for surgical sub-specialties. The Chief yelled, "Discharge rounds shorten hospital stays. Why don't you read once in a while."
3. Sometime after April 24, 2013 or early May 2013, during morning rounds with other staff present, the Chief told Complainant to "stop complaining that your hair hurts or you have a headache."
4. In May 2013, the Section Chief of Sub-Specialty Surgery cancelled consults, on procedures that Complainant said she was not trained to perform, and threatened to change Complainant's credentials if she did not perform those procedures.
5. On July 16, 2013, Complainant received a reprimand for not responding to phone inquiries from a patient's significant other.
The Agency conducted an investigation and provided Complainant with a copy of the investigative report, as well as notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing.
After receiving the Agency's motion for summary judgement and Complainant's response, the AJ assigned to the case determined that the record had been adequately developed and that no genuine dispute of material fact or questions of credibility existed warranting a hearing. Therefore, the AJ issued a decision by summary judgment in favor of the Agency on July 17, 2017.
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.
This appeal followed.
CONTENTIONS ON APPEAL
Complainant did not file a brief in support of her appeal.
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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor.
In sum, the evidence of record shows the following facts were established during the investigation concerning Complainant's allegations proffered in support of her discriminatory harassment/hostile work environment claim:
Proposed Suspension
Complainant testified that she was told by the Section Chief of Sub-Specialty Surgery (male) that she was about to be fired. She later learned from the facility director that this was false. The Agency had proposed the summary suspension of Complainant and a male coworker. The Section Chief intervened to stop the summary suspension.
Yelling
The Chief of Surgery (Chief) (male) advised his team that the Department of Medicine wanted all surgeons to attend discharge rounds at 1:00 PM, in addition to the 7:30 AM rounds. After Complainant queried the Chief regarding the necessity of this, the Chief slammed his fist on the table and yelled that the discharge rounds shortened stays. He asked her, "why don't you read once in a while?" The Chief acknowledged that he became frustrated and raised his voice at the meeting after Complainant questioned the necessity of two sets of rounds.
Supervisor's Comments
On April 24, 2013, the Chief of Surgery told Complainant to stop complaining that "her hair hurt or she had a headache." The comments were made during conversation in which Complainant said that she was going to have to move her Operating Room time.
Cancellation of Consults
In May of 2013, the Section Chief cancelled Complainant's consults for resections and evaluations of patients who had a skin abnormality or lesion. Complainant acknowledged to management that she did not want to remove skin lesions from the face and felt uncomfortable doing such procedures. Complainant averred she was not qualified to perform those procedures. Complainant stated that the Chief told her that she should change her privileges.
Reprimand
On July 16, 2013, Complainant received a reprimand, dated July 13, 2013. The stated reason for the reprimand was that Complainant failed to return a call to a patient's significant other. Complainant admits throwing the message away and not returning the call because the patient was difficult to deal with. The record shows that male physicians had been disciplined for similar misconduct on several occasions.
To establish a claim of hostile environment harassment based on the five allegations raised in her complaint, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, there is no evidence that Complainant's sex played any role in the disputed actions. The proposed suspension, which was never effectuated, was also proposed for a similarly situated male employee. Similarly, the reprimand was also similar to reprimands given to male employees. With regard to the yelling and other negative comments, the record gives no indication they were directed towards Complainant because of her sex. The evidence shows there was some hostility by these same management officials directed at many other employees, regardless of their gender. There simply is no evidence to support Complainant's claims of sex discrimination.
Upon careful review of the AJ's decision and the evidence of record, 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 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 tends 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
July 24, 2018
__________________
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
0120172875
6
0120172875