0120073001
09-17-2007
Debra D. Gibbons, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Debra D. Gibbons,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073001
Agency No. 200P-0640-2006101772
Hearing No. 550-2007-00236X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 15, 2007 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. The appeal is deemed timely and
subject to de novo review under 29 C.F.R. � 1614.405(a). Complainant
alleged that the agency retaliated against her for prior protected
activity when, on or about March 6, 2006, she became aware that VA
management provided negative information about her to her subsequent
employers, resulting in her receiving disciplinary action and ultimately
being terminated on March 15, 2006.
The following is a summary of the undisputed facts in the case.
Complainant is a former VA Social Worker. When she resigned from
the agency in August 2005, she began working for a private-sector
employer in a position that had been funded through an agency grant.
In March 2006, a veteran-patient complained to the agency Social Work
Service about complainant. The patient alleged that he and complainant
had become romantically involved while he was a resident/patient at
Innvision (a shelter for homeless veteran-patients on agency grounds)
and she was his case manager. According to the patient, he moved into
complainant's home when he left Innvision in November or December 2005
and complainant falsified agency records to show that he had found a
permanent home elsewhere. The patient also reported that complainant had
borrowed money from him which she had not repaid, and had even threatened
him if he told anyone about their relationship.
Agency management testified that when the patient recounted these
incidents he appeared frightened and in jeopardy of relapsing into
a substance abuse problem. Consequently, he was hospitalized at an
agency psychiatric facility for a short while. He later claimed that
he received an anonymous phone message which said he was a "dead man"
because he had complained about complainant. Agency management then
reported the allegations to complainant's new employer. As a result,
complainant's employer disciplined and later terminated her.
At the conclusion of the investigation, the agency provided complainant
the option of having a hearing before an EEOC Administrative Judge (AJ) or
having the agency issue a decision without a hearing. Complainant elected
to have a hearing. On April 6, 2007, the AJ assigned to the case issued
a sua sponte decision without a hearing over complainant's objections.
The AJ concluded that the agency had articulated non-retaliatory
reasons for its actions. Specifically, the AJ accepted the rationale
that management informed complainant's new employer about her conduct
because the veteran-patient alleged that complainant had engaged in
inappropriate, unethical conduct. The AJ determined that given the
nature of complainant's work and the agency's close working relationship
with her employers, management felt ethically obligated to inform
complainant's employer of the alleged conduct. The AJ further found that
complainant had not provided any proof showing that management's reasons
for taking action were a pretext to retaliate against her. Accordingly,
complainant had not proven she was a victim of unlawful discrimination.
The agency subsequently issued a final order adopting the AJ's finding.
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. See 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. See 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.
See id. at 249. The pleadings, responses to discovery, affidavits,
depositions, etc., must show on their face that there are no genuine
issues of material fact. 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. See id. at 255; see
also Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003)
(quoting Anderson, 477 U.S. at 249) ("The administrative judge may not
issue a decision without a hearing if he or she actually has to find
facts first to do so. According to the Supreme Court, 'at the summary
judgment stage the judge's function is not... to weigh the evidence
and determine the truth of the matter, but to determine whether there
is a genuine issue for trial.").
Complainant made several arguments on appeal.1 She maintains that the
Chief of Social Work had no ethical obligation to inform her new employer
about unproven allegations raised by a third party who was not a patient
at her new employer's facility, and where the contract between the agency
and Innvision had already expired. These two points, insists complainant,
is proof that the Chief of Social Work's actions were pretextual, done
solely for the purpose of retaliating against her for having filed an EEO
claim against him in the past. According to complainant, "even blind man
can see" that the actions were retaliatory, slanderous and defamatory.2
Having reviewed the record in its entirety and considering all
statements submitted on appeal, it is the decision of the Equal Employment
Opportunity Commission to affirm the agency's final order. First, of all,
we emphasize the fact that in issuing this decision we pass no judgment on
whether the allegations raised by the veteran-patient against complainant
are true. Our focus is only on whether there is sufficient evidence
to overturn the AJ's decision finding that the agency's action was
not retaliatory. Any other information is irrelevant to this question.
By the same token, complainant's ad hominen attacks against the Chief
of Social Work are irrelevant.
Even assuming complainant raised a prima facie case of retaliation,
the undisputed evidence shows that management acted reasonably and
appropriately when it informed complainant's employers of allegations
concerning complainant's conduct with a patient, regardless of whether
the allegations were true or not. We further agree with the AJ that
complainant has failed to meet her burden of proving that the actions
were pretextual. In her appeal statement she basically states that she
believes retaliation is at the root of what occurred. However, as we have
consistently stated, statements of belief, no matter how genuinely held,
are not proof and cannot stand legal scrutiny. See George v. United
States Postal Serv., EEOC Appeal No. 01A31214 (July 28, 2003); see also
Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988)
("mere conjecture that [the] employer's explanation is a pretext for
intentional discrimination is an insufficient basis for denial of
summary judgment.").
Accordingly, we find that the AJ's issuance of a decision without a
hearing was appropriate. Complainant has not offered evidence from
which a reasonable fact finder could conclude that retaliation occurred.
Therefore, we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 17, 2007
__________________
Date
1 In addition to her substantive claims on appeal, complainant also
maintains that the investigation into her case was improper because it was
"one-sided" and carried out without her participation. We have reviewed
the Report of Investigation and find no error. As the agency points out,
complainant elected not to participate in the investigation by refusing
to respond to the investigator's contact efforts.
2 We note that the Commission cannot take cognizance of the accusations
of slander and defamation as these are matters beyond our jurisdiction.
Our enforcement power is limited to the EEOC Regulations, and civil
charges such as this fall outside the purview of those regulations.
Similarly, complainant implies in her appeal statement that the Commission
must do something to remove the Chief of Social Work for his actions.
Again, such a request exceeds the authority and jurisdiction of the
EEOC.
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0120073001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073001