Flora S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 26, 2018

0120173020 (E.E.O.C. Oct. 26, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Flora S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120173020

Hearing No. 551-2013-00069X

Agency No. 200P-0463-2012102498

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 8, 2017
final order concerning an equal employment opportunity (EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Rating Veterans Service Representative,
0996, GS-12, at the Agency’s Anchorage Regional Office in Anchorage, Alaska.

On May 10, 2012 and October 22, 2012, Complainant filed two formal EEO complaints.2
Complainant claimed that the Agency discriminated against her when:

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.

2 The October 22, 2012 formal complaint is identified as Agency No. 200P-0463-2012103932.
This complaint was consolidated with the captioned Agency Number.

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1. on March 6, 2012, on the basis of her sex, Complainant was not selected for the
position of Decision Review Officer, GS-0930-13, advertised under Vacancy
Announcement 463-12-006-AB-597768; and

2. on July 5, 2012, in retaliation for initiating an EEO complaint over her non-selection,
Complainant was disciplined with a 3-day suspension effective July 14, 2012.3

Complainant’s formal complaints were consolidated and accepted for investigation. After an
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. Over Complainant's
objections,4 the AJ assigned to the case granted the Agency’s July 15, 2013 Motion for Summary
Judgement, and issued a decision without a hearing in favor of the Agency on July 28, 2017.

On August 8, 2017, the Agency subsequently issued a final order adopting the AJ’s finding of no
discrimination.

The instant appeal followed. On appeal, Complainant argues that the “final decision [in her]
case seems to lean heavily on the disciplinary aspect of [her] tenure” at the Agency to explain
her non-selection. Complainant attaches to her appeal a copy of her Motion of Opposition to the
Agency’s Motion for Summary Judgement and argues that this document supports that she was
not an employee with disciplinary problems. In her Motion of Opposition, Complainant argues
that the record supports that she was discriminated against, and that the record indicates that
there are genuine material issues of fact in dispute. Complainant also attaches documentation
consisting of monetary performance awards and copies of two grievance settlement agreements,
dated December 13, 2013 and March 12, 2013, indicating that the Union overruled several of the
Agency’s disciplinary actions against Complainant in 2011 and 2012.

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

3 On appeal, Complainant does not challenge the June 22, 2012 partial dismissal issued by the
Agency regarding various other claims. Therefore, we will not address these issues further in
our decision.

4 Complainant, on appeal, attaches a copy of her Motion of Opposition.
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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, summary
judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider summary judgment only upon a determination that the record has been adequately
developed for summary disposition.

Here, the AJ stated in the summary judgment decision that she reviewed the record, “including
the Agency’s Motion for Summary Judgement and Complainant’s Opposition.” The AJ
determined that it was undisputed that Complainant had applied for the Decision Review Officer,
Vacancy Announcement 463-12-006-AB-597768. The AJ found that Complainant interviewed
for the position, received the lowest ranking out of the three candidates, and was not selected for
the position. The AJ further determined that Complainant had previously been reprimanded by
her supervisor and received a proposed suspension on April 11, 2012, that was affirmed on July
5, 2012 and became effective July 14-16, 2012. The AJ concluded there was no evidence
presented that established that discrimination or retaliation played a role in the events at issue.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. While
Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record
that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its
burden, the 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. See St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

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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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

We find that the AJ's determination, that the Agency articulated legitimate non-discriminatory
reasons for its actions, was proper. The Veterans Service Center Manager (“M1”) stated,
regarding claim 1, that he was an interviewer and the selecting official for the vacancy
announcement at issue. M1 further stated that he received a list of qualified candidates from
Human Resources, and all candidates on the list were interviewed and scored based on their
answers to a series of performance-based interview questions. M1 explained that Complainant
“scored lower in the interview,” had “less experience” than the Selectee, had a “lower over all
score” than the Selectee, and was “ranked third.” M1 further explained that Complainant’s non-
selection was “based on the overall score.”

The Decision Review Officer (“DRO”) stated that she rated the interviewers, including
Complainant, based on their responses provided during the interview. The DRO further stated
that the Selectee’s responses were “more professional, more confident, and thorough.” The
DRO explained that Complainant “tended to ramble on [and] did not answer all parts of the
questions” and “her demeanor was considered unprofessional.”

The record includes a copy of a ranking assessment indicating that Complainant was ranked third
out of the three applicants. The record also contains a copy of Complainant’s January 13, 2012
reprimand for inappropriate conduct and behavior toward her supervisor and a copy of the April
11, 2012 proposed suspension for failure to follow leave requesting procedures.

Regarding claim 2, M1 stated that he issued a 3-day suspension “for failure to follow the proper
leave requesting procedures” which became effective in July 2012. M1 further stated that prior
to this violation, Complainant had been issued a reprimand. Suspension was the next step for
Complainant’s subsequent violation. M1 also explained that he issued the proposed suspension
in April 2012, before he was notified that Complainant had filed an EEO complaint against him
in May 2012. M1 further explained that he consulted with Human Resources before he issued
the proposed suspension, and he waited to issue the suspension in July 2012, because
Complainant had surgery and was on medical leave during the interim period.

The record indicates that Complainant elected not to remain anonymous during EEO counseling
when she completed and faxed the Notice of Rights and Responsibilities to the Agency’s Office
of Resolution Management located in Los Angeles, California on April 11, 2012.
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Although Complainant faxed this document on the same day that M1 issued the proposed 3-day
suspension, this coincidence, alone, does not refute M1’s testimony that he that he became aware
of Complainant’s complaint after he issued the April 2012 proposed suspension. The record
further indicates that Complainant’s formal complaint, filed on May 10, 2012, included a claim
regarding the April 2012 proposed suspension. Complainant has not shown a retaliatory animus
for M1’s issuance of the proposed suspension that became effective in July 2012.

The record also contains two witness statements from Complainant’s co-workers indicating that
they were unaware of the specific leave request procedures that Complainant was required to
follow. These statements further indicate that the co-workers have never been disciplined for
entering leave taken after they returned to work. However, these statements fail to indicate that
management imposed these procedures on Complainant because of her protected bases. We
also find it significant that M1 testified that Complainant’s supervisor “sent out an email to the
entire team [emphasis added],” instructing the team to contact a designated person to request
leave in the supervisor’s absence.

We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on her sex and/or reprisal for prior protected EEO
activity.

The Administrative Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that discrimination occurred.
Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is
AFFIRMED.

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),
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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.
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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

October 26, 2018
Date