0120140898
09-07-2016
Georgianne B.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Georgianne B.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120140898
Hearing No. 420-2013-00076X
Agency No. 12-00203-00747
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's December 16, 2013 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 Medical Records Technician at the Agency's Naval Hospital in Pensacola, Florida.
On March 19, 2012, Complainant filed a formal EEO complaint alleging the Agency discriminated against her in reprisal for prior EEO activity when:
a. on December 14, 2011, management issued her a Letter of Reprimand for Inattention to Detail;
b. in December 2011, management denied her 16 hours of award leave time; and
c. she was issued a Notice of Suspension for five days for Inattention to Detail and Failure to Follow Instructions effective July 9, 2012 through July 13, 2012.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On November 6, 2013, the AJ granted the Agency's motion for summary judgment and issued a decision in favor of the Agency.
The AJ found that the record developed during the investigation contained the following undisputed facts.
Complainant started working for the Agency in October 1982 and has worked as a Medical Records Technician since May 2009.
Complainant alleged that she was retaliated against by her supervisor for her participation as a witness in the investigation of a co-worker's EEO case against their common supervisor.
On October 24, 2011, the Commanding Officer granted a 16-hour time off award to all employees in good standing as having good performance appraisals, and free of disciplinary action. In November 2011, Complainant was notified that she would not be receiving the 16-hour time off award. According to her supervisor, she was denied the award leave because she was the subject of a pending disciplinary matter and a recent history of performance deficiencies. The record shows that the co-worker who filed the EEO complaint where Complainant was a witness did receive the time-off award.
On December 7, 2011, the supervisor conducted an investigatory meeting with Complainant concerning the alleged mislabeling of information on a patient's medical record jacket in early November. As a result of the mislabeling, an appointment was made with the wrong patient. Complainant stated that she was informed that her initials appeared on the label, but she told the supervisor that the initials were a forgery. Complainant further stated that she was not provided any evidence that she had actually placed her initials on the chart.
On December 14, 2011, the supervisor issued Complainant a Letter of Reprimand for "inattention to detail" concerning the mislabeling matter. The supervisor stated that Complainant was reprimanded because, after many counseling sessions and hours of training, she mislabeled a patient record, a mistake which could have violated HIPPA's privacy requirements and potentially exposed the patient to harm as a result of inappropriate treatment. Complainant stated that during her thirty-year tenure, she had no disciplinary action taken against her. Complainant denied that as of December 14, 2011, her supervisor had ever brought to her attention any concerns about her work performance. However, in the supervisor's affidavit, she stated that she had previously counseled Complainant for a similar mislabeling error of a patient record in September 2011.
Four days later, on December 18, 2011, Complainant met with the investigator and testified as a witness in an EEO complaint filed by a co-worker against their supervisor. The supervisor denied knowledge of Complainant's participation in the co-worker's complaint prior to making the decision to take disciplinary action against her.
On May 14, 2012, the supervisor issued Complainant a Notice of Proposed Suspension recommending that Complainant be suspended for five days for inattention to detail and failure to follow instructions. In the notice, incidents of poor work performance were identified, including incidents that occurred on March 15-16, 2012. The December 2011 letter of reprimand was also noted.
Based on these facts, the AJ concluded that Complainant failed to establish that the Agency's actions were motivated by retaliatory animus.
The Agency issued its final order fully implementing the AJ's decision. The instant appeal followed.
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. 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 does not sit as a fact finder. Id. 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. A disputed 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. Catreet, 477 U.S. 317, 322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of a case. If a case can only be resolved by weighing conflicting evidence, a hearing is required. 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. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmond v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975).
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 complainant to prevail, he 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).
The AJ concluded that Complainant in this case failed to establish a prima facie inference of retaliation. We disagree. The close proximity of Complainant's participation in her co-worker's EEO complaint concerning their mutual supervisor is sufficient to create an initial inference of retaliatory motive. Moreover, it is undisputed that the supervisor knew of Complainant's EEO activity by the time the five-day suspension was issued in June 2012. There is a dispute about when, exactly, the supervisor learned of Complainant's EEO activity. Complainant alleges that the supervisor knew as of November 30, 2011, the date her co-worker sent an email to the EEO investigator requesting Complainant as a witness. She argues this was shortly before the issuance of the letter of reprimand and denial of award leave in December 2011. However, the Agency points out that the supervisor was not an addressee of this email, nor was anyone in her chain of command. The Agency argues that the first witness list produced by the investigator was disseminated on December 9, 2011, and not received by the supervisor until December 12, 2011. The supervisor has testified that this was the first time she learned of Complainant's participation in her co-worker's EEO investigation.
The weight of the documentary evidence in the record supports the Agency's argument. However, even acknowledging that this dispute on timing exists, we conclude that the dispute did not need to resolved by holding a hearing. The 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). Here, even assuming Complainant established a prima facie inference of retaliatory motivation, the responsible Agency officials have articulated legitimate, non-discriminatory reasons for the disputed actions.
With regard to the letter of reprimand, the supervisor stated that she issued it after consulting with Human Resources because Complainant made a serious error in November 2011 in the labeling of a patient file. While Complainant denied she was responsible for the error, her initials were on the label. The supervisor also stated that she had counseled Complainant for a similar error in September 2011. With regard to the time-off award, the supervisor and her superiors stated that she was not granted the award because they did not consider her to be eligible because of the pending disciplinary action against her, even though it had not yet been effectuated. Agency witnesses also point out that Complainant's co-worker (the one with the EEO complaint) was recommended for the award. Finally, with regard to the five-day suspension, incidents of poor work performance were identified, including incidents that occurred on March 15-16, 2012, as well as noting the previous letter of reprimand.
Once the Agency has articulated legitimate, non-discriminatory reasons for its actions, the burden falls on Complainant to prove, by a preponderance of the evidence, that the proffered reasons were a pretext designed to mask the true retaliatory motivation. Complainant has not met this burden. With regard to the letter of reprimand, the evidence shows that on November 2, 2011, a corpsman brought to the supervisor's attention the fact that a patient's medical record had been mislabeled with initials indicating that Complainant made the error. The record also contains evidence that the supervisor met with a Human Resources specialist on November 7, 2011, to discuss possible disciplinary action against Complainant for the error. On December 7, 2011, the supervisor held a pre-disciplinary meeting with Complainant and her union representative. All these events occurred before there is evidence, beyond Complainant's mere speculation, that the supervisor or anyone in her chain of command was aware of Complainant's participation in her co-worker's EEO complaint. Thus, while the actual reprimand was issued after the supervisor knew Complainant was a witness, it is clear the disciplinary action was in the works before she knew. Moreover, it is undisputed that the error was made and that it was reasonable to attribute it to Complainant based on her initials on the file. Complainant states she was never counseled before this incident and the supervisor says she was. The investigative record contains documentary evidence in the form of a progress review and memoranda to the record supporting the supervisor's claim that she discussed with Complainant errors made on patients' charts in the months leading up to the reprimand. Moreover, the November 2011 error at issue alone is sufficient to provide a legitimate explanation for the issuance of the letter of reprimand
With regard to the time-off award, the record shows that on November 8, 2011, Human Resources sent an email to all department heads requesting the names of those excluded from the award by noon the next day. The supervisor responded that Complainant should be excluded. Complainant argues that there is no evidence in the record "which supports a conclusion that any formal disciplinary action had been taken prior to the time of the leave award on October 24, 2011 [date the Commander announced the award]. Respondent's argument is essentially that disciplinary action was in the works [emphasis in its original]." However, we are not persuaded that Complainant had proven pretext. The record shows that disciplinary action against Complainant was being discussed at the time Human Resources, in effectuating the Commander's award program, asked management to identify those not recommended for the award. Simply because management considered pending disciplinary action, rather than only effectuated action, in denying Complainant the award does not establish retaliatory motivation.
Finally, Complainant states that in regard to her suspension, the record "is silent on any actual independently verifiable documentary evidence (other than accusations), which supported the suspension . . . [the supervisor] suspended a 30 plus year employee without pointing to a single regulation which the employee had violated, or proffering independently verifiable evidence, in close proximity to [Complainant] having been identified and having testified as an adverse witness in connection with an unrelated EEO complaint." However, we agree with the Agency that, at best, Complainant is arguing that her suspension documents are procedurally flawed, which does not prove retaliation. Moreover, the record supports the Agency's proffered reason for the suspension - that it was the next step in progressive discipline for Complainant's inattention to detail and failure to follow instructions. Among other things, the record shows, and the AJ found, that she was provided with evidence supporting the supervisor's claim that she did not fully comply with the directive to place original checklists in records. Complainant's bald assertions that the disciplinary action was motivated by retaliatory animus are simply not the evidence needed to prove pretext.
Accordingly, after careful consideration of the record and the arguments of the parties on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that she was subjected to unlawful retaliation for her participating in the investigation of her co-worker's EEO complaint. The Agency's final order, adopting the EEOC AJ's finding of no retaliation, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
September 7, 2016
__________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140898
2
0120140898
8
0120140898