0120140122
10-30-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140122
Hearing No. 560-2013-00015X
Agency No. 200305892012101236
DECISION
On October 3, 2013, Complainant filed an appeal from the Agency's September 27, 2013, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant at the Agency's Medical Center facility in Kansas City, Missouri.
On April 5, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (American Indian) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
(1) On December 21, 2011, he received three written letters of counseling.
(2) On January 17, 2012, he found plastic cockroaches someone placed in his desk drawer.
The Agency accepted claim (1) for investigation. The Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency indicated that Complainant failed to show that he was harmed by the alleged event.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency's July 18, 2013, motion for a decision without a hearing and issued a decision without a hearing on August 30, 2013. The Agency's motion stated that there were no material facts in dispute. The Agency indicated that on December 21, 2011, Complainant received three written letters of counseling from his supervisor (Supervisor) relating to customer service incidents that occurred in November and December 2011. The Supervisor indicated that the three letters were given when: 1) Complainant overbooked five patients for one appointment slot at 8:00 a.m. on December 19, 2011; 2) on November 18, 2011, a patient overhead Complainant being rude to an elderly woman who was trying to reschedule an appointment for her husband; and 3) Complainant sent the son of a patient and another individual away and to them come back later rather than checking with a nurse or doctor to see if something could be done. Based on these facts, the Agency found that Complainant failed to establish a prima facie case of discrimination based on race or his prior EEO activity. Assuming, for sake of argument, that Complainant established his prima facie case, the Agency argued that it provided legitimate, nondiscriminatory reasons for its action which he failed to show was pretext for discrimination and/or unlawful retaliation. As such, the Agency requested that the AJ issue a decision without a hearing finding no discrimination.
In response to the Agency's motion, Complainant stated that he did "not accept material facts as the matters at hand were issued with retaliation toward" him. He argued that management and the Union failed to discuss the matter with him. He requested to submit interrogatory questions to the Agency's attorney. Complainant requested a hearing and asserted that he should not be denied a hearing.
The AJ issued her decision without a hearing. She initially noted that Complainant merely stated without support that the Agency's motion should be denied. The AJ noted that the record had been developed, there are no material facts in dispute, and that a decision without a hearing was appropriate in favor of the Agency. The AJ determined that the Supervisor issued the three counseling letters due to Complainant's customer service incidents. The AJ noted that with the first letter, Complainant had overbooked six people at 8:00 a.m. and four at 8:30 a.m. As a result, the clinic had 21 patients in scheduled in the lab while the waiting area holds less than ten people and only one lab technician was on duty. With the second letter, the Supervisor indicated that the son of a patient came to the hospital to get a prescription for his father filled. Complainant told him that he could not be seen until later. The Supervisor noted that the son did not want to be seen but just wanted to have a prescription filled for his father who was ill at home. The son of the patient spoke to the Supervisor about the incident and stated that Complainant had been rude to him on a prior occasion. The Supervisor determined that Complainant should have called a nurse or doctor to see what they could do rather than telling the son to come back after 1:00 p.m. The final letter was issued because a patient overheard Complainant being rude to an elderly woman on December 15, 2011. The patient reported the incident on a survey to management. Based on the report in the survey, the Supervisor had to act upon notice of the incident.
Based on these facts, the AJ found that Complainant failed to establish a prima facie case of discrimination and/or reprisal. Assuming, arguendo that Complainant established his prima facie case, the AJ found that the Agency provided legitimate, nondiscriminatory reasons for the three counseling letters. The AJ then found that Complainant failed to present any evidence that the Agency's action was motivated by discrimination based on his national origin and/or his prior EEO activity. As such, the AJ issued the decision without a hearing in the Agency's favor. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed requesting an investigation into his claim regarding the plastic cockroaches. He stated that he was improperly denied a hearing. He also asserted that he was denied interrogatories, a meeting with union officials, leave under the Family Medical Leave Act (FMLA), and the EEOC hearing. As such, he requested that the Commission remand the matter to the Merit Systems Protection Board (MSPB). The Agency requested that the Commission affirm its final decision implementing the AJ's decision without a hearing.
ANALYSIS AND FINDINGS
Claims on Appeal
On appeal, Complainant asserted that he was denied meetings between the Union and management regarding the events and leave under FMLA. We note that these events are not within the purview of EEO laws. Therefore, we shall not address these claims.
In addition, Complainant stated that the matter should be remanded to the MSPB. Complainant provided no additional information, argument, or evidence to substantiate his request. As such, we discern no basis to remand the matter to the MSPB.
Summary Judgment
We must 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.
We note that Complainant asserted that he wanted to serve interrogatories on the Agency. However, during the hearing and on appeal, Complainant has not indicated what he specifically sought from the Agency. Further, Complainant asserted without specific statement or evidence, that there were material facts in dispute. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Dismissal of Claim (2)
Complainant asserted for the first time on appeal that his claim regarding the plastic cockroaches should be investigated. In essence, Complainant has argued that the claim was improperly dismissed.
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant's allegations are insufficient to state a claim of a hostile work environment. Therefore, we find that the dismissal of claim (2) was appropriate.
Disparate Treatment
In claim (1), Complainant alleged he was subjected to disparate treatment based on his national origin and prior EEO activity when the Supervisor issued him three counseling letters. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the AJ properly determined that the Supervisor provided legitimate, nondiscriminatory reasons for the three counseling letters. We determine that Complainant has failed to show that the reasons for the three counseling letters were tantamount to discrimination based on his national origin or his prior EEO activity. As such, we conclude that the AJ properly determined that Complainant failed to establish his claim of discrimination.
CONCLUSION
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.
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
October 30, 2014
__________________
Date
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0120140122
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140122