Bernetta B., Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 25, 20160120140968 (E.E.O.C. Feb. 25, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernetta B., Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140968 Hearing No. 480-2012-00374X Agency No. 200P-0691-2011104605 DECISION Complainant filed an appeal from the Agency’s final order dated November 18, 2013, finding no discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In her complaint, dated October 8, 2011, Complainant alleged discrimination based on race (African American), color (black), sex (female), and in reprisal for prior EEO activity when on July 12, 2011, management denied her request to be placed on the weekends off rotation schedule. Complainant also alleged that she was subjected to harassment as a result of the incident described above. On October 26, 2011, the Agency accepted the July 12, 2011 incident but dismissed Complainant’s harassment claim for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Upon completion of the investigation of the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On 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. 0120140968 2 September 18, 2013, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. ANALYSIS AND FINDINGS 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 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. (Moreover, despite Complainant’s contentions on appeal, we find the record was fully developed.) In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incident. During the relevant time period, Complainant was employed as a Food Service Supervisor, WS-04/05, at the Agency’s Nutrition and Food Services unit of the Greater Los Angeles VA Healthcare System. As a Food Service Supervisor, Complainant was responsible for the day-to-day operation of the food service in the Building 500 galley, including preparing work assignment sheets, checking employees in and out, supervising employees, and for activities involved in ensuring that patients were fed in a timely manner. Complainant’s Chief of Food Management indicated that she received a complaint from Complainant’s coworker, a WS-4 supervisor in the Building 500 galley, that she always worked weekends and was not happy with her schedule. In response to that complaint and in order to expose all W-4 supervisors to different work duties performed on weekdays and weekends, the Chief stated that she decided to rotate weekends off schedules and asked Complainant’s supervisor, i.e., the Section Chief of Food Management, and her Assistant Chief (AC), to rotate all 12 to 13 Food Service Supervisors for weekends off schedule. Complainant acknowledged that the mandatory rotation schedule was previously implemented on July 4, 2010, and she initially had weekends off rotation at that time. The AC indicated that he was responsible for preparing rotation work schedules for all Food Service Supervisors in various physical locations. Specifically, the AC stated that there were previously two WS-4 supervisors in the Building 500 galley, i.e., Complainant and the coworker, 0120140968 3 described above, until February, 2010, when the third W-4 supervisor, who was previously assigned to the State Home, returned to the Building 500 galley. The AC stated that since there were three supervisors, including Complainant, in the Building 500 galley, he rotated them from the A.M. shift to the P.M. shift, from the P.M. shift to the Relief Shift (weekends off), and from the Relief Shift (weekends off) to the A.M. shift, each supervisor getting weekends off about every six months. The AC indicated that Complainant’s request for weekends off in July 2011, could not be honored because another supervisor at the Building 500 galley was scheduled for weekends off at that time. The AC denied he scheduled weekend rotations based on discrimination as Complainant alleged. Complainant’s supervisor indicated that based on time records, Complainant received weekends off from July 4, 2010, to August 28, 2010, and from October 10, 2010, through January 9, 2011. The supervisor also stated that Complainant was next scheduled for the weekends off rotation in October 2011, which she received. We agree with the AJ that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not getting weekends off on July 12, 2011. With regard to her claim of harassment, we agree with the Agency’s finding that Complainant failed to establish the severity of the conduct in question or that it was related to any protected basis of discrimination. We find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. On appeal, Complainant raised matters that are not related to the incident at issue.2 Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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. 2 Our records indicate Complainant filed another complaint, Agency No. 200P-0691- 2011101910, concerning her nonselection on December 15, 2010. The Agency found no discrimination and Complainant filed an appeal from the Agency’s final order dated October 15, 2015, which is pending before the Commission under EEOC Appeal No. 0120160795. 0120140968 4 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, 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 (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 0120140968 5 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 February 25, 2016 Date Copy with citationCopy as parenthetical citation