0120170145
08-08-2018
Carmina E.,1 Complainant, v. Peter O'Rourke, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Carmina E.,1
Complainant,
v.
Peter O'Rourke,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120170145
Hearing No. 420-2014-00086X
Agency No. 2001-0521-2013101795
DECISION
On October 5, 2016, 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 September 9, 2016, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency discriminated against her on the bases of race (African American), age (48), and reprisal as the result of twelve claims between May 2012 and June 2013.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Charge Nurse at the Agency's Blind Rehabilitation Center, VA Medical Center facility in Birmingham, Alabama.
On March 22, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), age (48), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 the Age Discrimination in Employment Act of 1967 when:
1. Since May 2012, Complainant's supervisor, the Nurse Manager (M1) held discussions and meetings with the other Charge Nurse (CN), while intentionally excluding and neglecting to share information pertinent to charge nurses with Complainant;
2. Since May 2012, and as recent as April 22, 2013, CN was allowed at least one hour for lunch breaks whereas Complainant's lunch breaks were limited to 30 minutes;
3. From May 2012, and as recent as May 29, 2013, M1 failed to take action after Complainant informed her on numerous occasions that CN left the work area without advising her or others;
4. On January 28, 2013, and January 30, 2013, Complainant was excluded from participating in a health fair and from administering flu shots;
5. On February 6, 2013, Complainant became aware that M1 asked Complainant's co-workers if Complainant called in and she wanted to know with whom Complainant spoke. M1 also called Complainant at home and left a voicemail message inquiring about who Complainant spoke to when she called in while she was off duty;
6. On February 19, 2013, Complainant was advised that M1 informed CN about an employee's schedule but Complainant was never informed;
7. On March 15, 2013, M1 questioned other employees about how long Complainant would be on jury duty;
8. In retaliation for the instant complaint, Complainant was detailed to the position of Registered Nurse Telephone Care and Primary Care Based Medicine, effective April 22, 2013, and on May 23, 2013, the Primary Care Director (PD) informed Complainant that the detail was extended indefinitely;
9. As of April 23, 2013, M1 did not respond to Complainant's request for annual leave for the period of May 15, 2013, to May 20, 2013;
10. In retaliation for the instant complaint, between March 13, 2013, and April 6, 2013, M1 granted overtime to CN and allowed her to use compensatory time during the same pay period, while Complainant was not allowed to work overtime and was not afforded the opportunity to work compensatory time;
11. In retaliation for the instant complaint, in April 2013, M1 interviewed some of Complainant's co-workers behind her back and asked how they were getting along with her; and,
12. In retaliation for the instant complaint, in June 2013, Complainant was the target of an administrative investigation following the April 2013, "investigation" performed by M1 as described in event 11.
At the conclusion of 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 timely requested a hearing. On August 26, 2014, the Agency submitted a Motion for Summary Judgement. Thereafter, on October 14, 2015, Complainant timely submitted a Response. After consideration of the motion, the Response, and the record, the AJ assigned to the case determined that there were no genuine issues of material fact and issued a decision without a hearing on September 1, 2016. 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.
The investigative record reveals no witness statements or evidence of comments by M1 concerning Complainant's race, age or any prior EEO activity. M1 testified that she did spend time with CN, as she was a newly assigned Charge Nurse. Moreover, CN specifically requested mentoring and coaching from M1. Complainant, on the other hand was an experienced Charge Nurse and did not request extra attention.
CN is younger than Complainant and not in her protected age group. However, CN is an African American Female. Complainant additionally asserted that another Charge Nurse (CN2) was given preferential treatment and allowed to attend a January 29, 2013, health fair, and Complainant was not. The record shows that CN2 is also African American and was born in 1961, three years older than Complainant. With respect to the health fair, Complainant had an opportunity to attend. M1 testified that she sent an email to all of the Charge Nurses, including Complainant, requesting volunteers to attend the fair. While CN responded to the email, Complainant did not respond or otherwise express an interest in attending the fair. In addition to CN2, at least two other Charge Nurses were emailed, one was African American, 62 years old, and another was Caucasian, 42 years old.
M1 further testified that she forgot that she had approved leave for Complainant and earnestly apologized for calling Complainant to inquire of her whereabouts.
The record further shows that in March 2013, CN made a charge that she had been "constantly verbally harassed" by Complainant, between January and March, and did not believe that she could work with Complainant any longer. As the result of an "Administrative Board of Investigation," M1 wrote an April 2013, memorandum, summarizing the findings of extensive staff interviews concerning Complainant. It was concluded that, among a multitude of things, Complainant was considered abrasive, demeaning, bullying, unprofessional, rude, pushy, controlling, negative, and condescending. Shortly thereafter, Complainant was detailed to the position of Registered Nurse Telephone Care, without any change to her grade, salary and duty tour. Management indicated that the detail would continue until the completion of the administrative board of investigation.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among a number of things, that the Agency erred in adopting the AJ's decision as there were facts in dispute in the record. Complainant further avers that CN made her claims of harassment on the part of Complainant a few days after Complainant filed her formal complaint. The Agency reiterates previously submitted contentions and states that Complainant relies only on mere allegations and denials in her pleadings, and conclusory statements in her affidavit.
STANDARD OF REVIEW
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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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.
If a case can only be resolved by weighing conflicting evidence, 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). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review of the record, we find that there are no genuine issues of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement, and she was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
The instant appeal can be examined under both disparate treatment and hostile work environment analyses. In order to prevail on a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of hostile work environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of Complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
In the instant matter, we assume without so finding that Complainant established a prima facie case of disparate treatment discrimination. Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. For instance, the Agency indicated that Complainant was detailed to the Registered Nurse Telephone Care position because of the pending Administrative Board of Investigation inquiry. Beyond mere assertions, Complainant failed to present evidence to that the Agency's actions were based on race, age or reprisal. Moreover, Complainant failed to present evidence of pretext in any of the Agency's actions.
With respect to her hostile work environment claim, Complainant provided no evidence of severe or pervasive conduct on the part of the Agency, sufficient to support a harassment claim based on her race, age or reprisal. There was no showing of unwelcome verbal or physical conduct on the part of the Agency. Nor was there evidence of any action affecting a term or condition of employment, or actions unreasonably interfering with Complainant's work environment. The detail made no changes to Complainant's grade or salary. Moreover, it resulted from charges made against Complainant, not because of her allegations against the Agency.
CONCLUSION
The AJ's issuance of a decision without a hearing was appropriate. Complainant did not establish the Agency subjected her to disparate treatment, hostile work environment or reprisal, for prior protected EEO activity as a result of the allegations set forth herein. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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
8/8/18
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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