0120092076
02-25-2011
Angel L. Quinones, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Angel L. Quinones,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092076
Hearing No. 510-2008-00399x
Agency No. 200I-0573-2008-100426
DECISION
On April 14, 2009, Complainant filed a timely appeal from the Agency's
March 18, 2009, Final Order concerning his 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. The Commission accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's Final Order.
ISSUES PRESENTED
The issues presented in this appeal are (i) whether the EEOC
Administrative Judge (AJ) properly issued a decision without a hearing
(summary judgment) in this matter; and (ii) whether the Agency,
in adopting the AJ's decision, correctly concluded that it did not
discriminate against Complainant as alleged.
BACKGROUND
On February 2, 2008, Complainant filed an EEO complaint alleging that
the Agency subjected him to a harassment/hostile work environment on
the bases of national origin (Hispanic) 1 and in reprisal for prior
protected EEO activity under Title VII when:
(a) from January 8 through March 30, 2007, he was not allowed to work;
(b) on January 12, 2007, his request for annual leave was denied;
(c) in February 2007, his Manager, Chief (Acting) of Nursing Services
(A1), rejected his request to meet with her;
(d) on March 28, 2007, the Human Resources Management Specialist (A2)
told him that "we could keep you working but we decided not to;"
(e) on March 30, 2007, A1 falsely stated that she had met with him to
discuss his case;
(f) on July 6, 2007, the Agency instructed him to leave work and he was
not permitted to use annual leave; and
(g) on October 4, 2007, he received a notice of proposed removal.
Following an investigation, Complainant requested a hearing before
an AJ. On December 8, 2008, the Agency filed a Motion to Dismiss or in
the Alternative for Summary Judgment/Decision without a Hearing (MSJ);
Complainant and his representative did not file a response. On February
26, 2009, the AJ issued a decision without a hearing, finding that the
Agency did not discriminate against Complainant. The Agency subsequently
issued a Final Order, adopting the AJ's finding that Complainant failed to
prove that the Agency subjected him to harassment/hostile work environment
as alleged.
Prior to his termination on April 28, 2008, Complainant worked as a
Registered Nurse (RN) at the Agency's Lake City VAMC in Lake City,
Florida. The record reveals that Complainant's nursing license had
been subject to restriction since 2000, when Complainant had unlawfully
purchased prescriptions drugs. He accepted enrollment in the Intervention
Project for Nurses (IPN) in order to maintain his professional licensing.2
In January 2007, the Agency learned that Complainant had tested positive
for a prohibited drug (Darvocet) and removed him from the worksite,
pending resolution of his licensing through INP. On March 29, 2007,
after submitting the required documents, Complainant was allowed to
return to work.
In July 2007, Complainant did not submit to the periodic drug testing as
required by INP. In compliance with INP rules, the Agency sent him home,
pending documentation allowing him to return to work; he returned to work
after a month. In October 2007, the Agency learned that the INP required
the participant's supervisor, here A2, to complete and sign quarterly
Work Performance Evaluations. A2 had never done so, because Complainant
submitted them to a non-supervisory nurse for signature.3 On October 23,
2007, the Agency issued Complainant a Notice of Removal, charging him
with unauthorized absences and conduct unbecoming a federal employee.4
Complainant identified a female nurse (C1), whom he asserted was
similarly situated to him and whom he alleged was treated more favorably.
The record indicates that C1 was not of Hispanic origin, was a Licensed
Practical Nurse (LPN), did not participate in the INP, did not use drugs,
and was not supervised by A1 for nursing duties. A2 explained that
C1 was under investigation by the Inspector General and was ultimately
terminated upon her criminal conviction for selling drugs.
CONTENTIONS ON APPEAL
In a statement on appeal, Complainant contends that A1 and A2 misled
the AJ. He asserted that C1 was never terminated and that she is still
employed at the VAMC. He also states that he did not receive information
from the Agency about C1, as ordered by the AJ.5
The Agency argues that issuance of a summary judgment decision was
appropriate to this matter and that the AJ's findings and analysis were
proper and correct.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision, because the AJ issued a summary
judgment 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); see also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (November 9, 1999) at Chapter 9,
� VI.B. Thus, the Commission will examine the facts of record, review
the documents, statements, and testimony of record, including timely
and relevant submissions of the parties, and issue its decision based
on the Commission's assessment of the record and application of the law.
Summary Judgment
Initially, we must first determine whether it was appropriate for
the AJ to issue a decision without a hearing on the record herein.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there are no genuine issues of material
fact. 29 C.F.R. � 1614.109(g). Our regulation is patterned after the
summary judgment procedure set out 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 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case requires a determination of credibility, issuing a decision
without holding a hearing is not appropriate. In the context of an
administrative proceeding, an AJ may properly consider issuing a decision
without holding a hearing only upon a determination that the record has
been adequately developed for summary disposition. See Petty v. Dep't of
Def., EEOC Appeal No. 01A24206 (July 11, 2003).6 After review, we find
that the AJ correctly determined that no genuine issues of material fact
remained and that it was suitable to issue a summary judgment decision.
Complainant, as noted above, did not respond to the Agency's Motion for
summary judgment.
Legal Framework - Disparate Treatment7
Complainant has alleged discrimination of disparate treatment and
harassment/hostile work environment. We first address his claim as one
of disparate treatment. The legal analysis in a disparate treatment claim
such as this is a three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). In general,
Complainant must establish a prima facie case of discrimination by
demonstrating that he 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).8 Once
Complainant does so, or we so assume, the burden moves to the Agency
to articulate legitimate and nondiscriminatory reasons for its conduct.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
see U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983). After the Agency presents its reasons, the ultimate burden of
proof reverts to Complainant; to ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency's explanation
is a pretext for discrimination.9 Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993).
The elements of the prima facie case are determined by the individual
circumstances of each case and the bases of discrimination alleged.
Nevertheless, regardless of the specific action(s) at issue, Complainant
can establish a prima facie case of discrimination by showing: (1)
that he is a member of a protected group; (2) that he was subjected to
an adverse action; and (3) that there is an inference of discriminatory
motivation. Potter v. Goodwill Industries of Cleveland, Inc., 518 F.2d
864, 865 (6th Cir. 1975); O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996); Enforcement Guidance: O'Connor v. Consolidated Coin
Caterers Corp., n. 4 (September 18, 1996).10
In a reprisal claim, following the burdens set forth in McDonnell
Douglas; Hochstadt v. Worcester Found. for Exper. Biol., Inc. 425
F.Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to claims of reprisal); see Coffman v. Dep't
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997).
Complainant can establish a prima facie case of reprisal by showing
that: (1) he engaged in protected activity; (2) the acting official
of the Agency was aware of the protected activity; (3) subsequently,
he was subjected to adverse treatment by the Agency; and (4) a nexus,
or causal connection, exists between the protected activity and the
adverse action. Protected activity is action taken in opposition, i.e.,
opposing a practice made unlawful by an EEO statute, or participation
in an EEO activity, i.e., filing a complaint, testifying, assisting,
or participating in any part of the EEO process. Any adverse treatment
that is based on a retaliatory motive and is reasonably likely to deter
Complainant or others from engaging in protected activity is prohibited.
EEOC Compliance Manual Section 8, Retaliation, pp. 8-13 (May 20, 1998);
see also Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Claim Based on National Origin Discrimination
The record before us shows that Complainant is from Puerto Rico of
Hispanic descent and that he experienced adverse actions by the Agency,
culminating in his proposed removal in October 2007. The third element,
the inference of discrimination, may be shown by comparison to another
or others similarly situated, but other evidence can suffice to meet
this requirement. Complainant contended that C1 was similarly situated
to him and was treated more favorably. First, we do not agree that C1
was similarly situated to Complainant, in that, unlike Complainant,
she was an LPN, she did not participate in the INP, she did not use
drugs, she was under investigation by the Inspector General for selling
them, and she was not supervised by A1 for nursing services. A2 stated
that C1 was terminated upon her criminal conviction for selling drugs.
Thus, we find that Complainant failed to establish a prima facie case
of disparate treatment discrimination based on national origin.
Claim Based on Prior Protected Activity
For the purposes of further discussion and analysis, we will assume that
Complainant articulated a prima facie case, and turn to the Agency's
reasons for its actions and Complainant's demonstration of pretext.
We find that the Agency had legitimate, nondiscriminatory reasons for
the actions taken with respect to Complainant. The Agency asserted that
it followed the rules of the INP and its own policies in its decisions
regarding Complainant's work and use of leave.11 In the third step
of our analysis, the ultimate burden of proof belongs to Complainant
to show pretext. See fn. 9, above. Other than offering statements
of conjecture and speculation, Complainant has not presented probative
and/or preponderant evidence of pretext. We note that, in addressing an
AJ's issuance of a decision without a hearing, an employee's opposition
must consist of more than mere unsupported allegations or denials and
must be supported by affidavits or other competent evidence setting forth
specific facts showing that there is a genuine issue for a hearing. See
Celotex, 477 U.S. at 324. For this reason, we find that the Agency did
not discriminate against Complainant as alleged.
Harassment
With respect to Complainant's contention that he was harassed and
subjected to a hostile work environment with respect to the matters
set forth in this complaint, we find that under the standards set forth
in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's
claim of hostile work environment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
A finding of a hostile work environment is precluded by our determination
that Complainant failed to establish that any of the actions taken by
the Agency were motivated by discriminatory animus. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the Agency's Final Order, because the AJ's issuance
of a decision without a hearing was appropriate, and the preponderance of
the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____2/25/11_____________
Date
1 The Commission considers the term "Hispanic" to be a designation of
national origin, not race.
2 IPN is a program of the Florida Nurses Association. It monitors a
participating nurse's ability to practice nursing safely and documents
their abstinence from mood and mind altering drugs. Monitoring is
accomplished through a random urine drug screen program, periodic reports
from facilitated support groups, and from bi-monthly progress evaluations
from the participant's supervisor.
3 The nurse signing the forms indicated that the prior manager had asked
her to do so. Nevertheless, Complainant never involved A2 in the INP
process by, i.e., providing her a copy of the contract between INP and
Complainant.
4 Complainant's termination became effective April 28, 2008.
5 To the extent that Complainant maintains that A1 and A2 misled the AJ
and that he did not receive information ordered by the AJ, we again note
that neither Complainant nor his representative filed an opposition to
the Agency's motion for summary judgment. Had they done so, these matters
raised for the first time on appeal, could have been addressed by the AJ.
Upon review of the record, however, we find that it includes sufficient
information about C1 to allow for a determination regarding whether she
was similarly situated to Complainant.
6 Petty requires that, before issuing a summary judgment decision,
an AJ must ensure that a Complainant is provided: (i) ample notice
of the proposal to issue a decision without a hearing, (ii) a
comprehensive statement of the allegedly undisputed material facts,
(iii) the opportunity to respond to a motion or an AJ's intention to
issue a decision without a hearing, and (iv) the opportunity to engage
in discovery before responding, if necessary. In opposing a decision
without a hearing, the opposing party must demonstrate that genuine
material facts remain.
7 Although the Agency accepted the complaint as harassment/hostile work
environment, we note that Complainant's suggestion of a comparative
employee treated differently requires a disparate treatment analysis as
well.
8 Evidence to establish a prima facie case of discrimination includes the
showing that a similarly situated employee outside of the Complainant's
purviews (his national origin and prior EEO activity) was treated
more favorably. The Commission has long held that, for employees to be
considered similarly situated, they must report to the same management
officials, and all relevant aspects of their employment must be the
same as those of the comparative employee. O'Neal v. USPS, EEOC Request
No. 05910490 (July 23,1991).
9 Pretext is a sham or disguise for discrimination. A demonstration
of pretext requires Complainant to show that the Agency's explanations
for its actions were not its true reasons and that its actions were
influenced by legally impermissible criteria, i.e., animus because of
his national origin and/or prior EEO activity. See St. Mary's, above.
A Complainant may demonstrate pretext by showing that the reasons offered
by the Agency are without a factual basis and not the actual motivation
for its actions. Based on the record, including relevant statements
from the parties, we must determine whether there exists sufficient
and preponderant evidence demonstrating that the Agency's explanations
for its adverse actions were false or baseless, that they constituted
pretext for discrimination, and that a decision-maker might reasonably
conclude that the Agency unlawfully discriminated against the Complainant.
Reeves v, Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
10 This document and other information is available on the Commission's
website at: http://www.eeoc.gov.
11 The Agency proposed Complainant's removal on October 4, 2007, charging
him as follows: Charge 1. Unexcused or unauthorized absence, including
(i) absence from July 8 to April 9, 2007, AWOL, after notification that
license invalid; and (ii) absence from July 3 to July 31, 2007, when he
missed testing date; and Charge 2. Conduct unbecoming a Federal Employee,
when a co-worker signed the IPN bimonthly work performance report, from,
at least, December 2005 through September 2006, and not his immediate
supervisor as stated on the form.
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0120092076
U.S. EQUAL EA1LOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092076