Iona A.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 1, 20160120140816 (E.E.O.C. Sep. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iona A.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140816 Hearing No. 430-2011-00339X Agency No. 20013192011100582 DECISION Complainant filed an appeal from the Agency’s October 30, 2013, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-13 Coach in the Columbia, South Carolina Regional Office in charge of the Public Contact and the Fiduciary Teams. On November 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), age (60), and in reprisal for prior protected EEO activity when: (a) on October 1, 2010, her direct supervisor (S1) did not issue her a performance award; (b) on March 2, 2011, she was issued a letter of concern; (c) she was issued an admonishment; and (d) she was subjected to retaliatory harassment when (1) on February 28, 2011, S1 instructed her to provide separate written statements about whether she should be charged with Absent without Leave (AWOL), whether she gave instructions to her assistant (LG) to cancel work products, and whether she discussed information about a co-worker’s removal from his out-based duty 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. 0120140816 2 station; and (2) on March 8, 2011, she was not advised beforehand that she was required to attend a meeting and S1 told her that she frustrated him. 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 April 30, 2013, the Agency submitted a motion for summary judgment which the AJ granted on September 27, 2013. The AJ noted in her decision that she did not receive any opposition to the Agency’s motion.2 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. On appeal, Complainant argues that the AJ erred when she noted that Complainant had not responded to the Agency's motion for summary judgment. The Agency argues that while the evidence shows that Complainant had in fact sent an opposition to the Agency’s motion to the AJ, there is no evidence that the AJ actually received Complainant’s response to the motion. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. Initially, we agree with the Agency in concluding that whether or not the AJ had erred when she noted that Complainant had not responded to the motion for summary judgment, the error is harmless in this particular case. The error, if any, is harmless because, even after consideration of Complainant’s opposition to the Agency’s motion for summary judgment, the evidence in the record fails to establish a genuine issue of material fact with respect to any claim. 2 However, on appeal, Complainant asserts with supporting documentary evidence that she did submit an opposition to the motion. Complainant also asserts that the Agency’s motion was submitted several months after the deadline to do so had passed. 0120140816 3 We agree with the AJ who concluded that Complainant failed to submit sufficient evidence to establish that the Agency’s articulated legitimate, non-discriminatory reasons for the employment actions were a pretext or that any responsible management official was motivated by discriminatory or retaliatory animus. Specifically, we note that the record shows the following: Claim A: With respect to Claim A, S1 explains that Complainant did not meet the goals of the Public Contact Team and the Fiduciary Team. S1 also states that during his first three months on the job he discovered that there were no monitoring or control systems on the goals for the Public Contact Team and no way to measure on a daily basis whether they were even coming close to meeting the goals. S1 said that Complainant had been over the Public Contact Team for a year and a half and did not have any controls over these systems, and he had to get them in place himself. S1 also explains that there were standards in place to measure Complainant's performance but she was not meeting those standards. With respect to the comparison employee (C1) identified by Complainant, S1 explains that he was not, nor had he ever been, responsible for the supervision of C1 or her team. S1 further states that he was not familiar with C1’s team goals or her past performance, and had no role in recommending awards for any supervisor not under his immediate supervision. Claim B: With respect to Claim B, S1 explains that the letter of concern is like a non-disciplinary letter of counseling. In addition, S1 explains that significant data integrity issues were found during a site visit by the central office and he discussed the matter with Complainant and with her assistant (LG). Claim C: S1 states that the admonishment issued by him was the lowest level of discipline pursuant to Agency written policy. S1 also explains that he was asked to conduct a “fact finding” into certain actions and that as part of that fact finding, Complainant stated that she did not have any contact with a particular individual, which turned out to be false. S1 further explains that the admonishment was for providing an inaccurate statement when she was questioned by the Assistant Service Center Manager. S1 explains that an email dated January 14, 2011, indicates that Complainant did have contact with the individual she denied having contact with. Accordingly, S1 followed a table of penalties outlined in Agency policy. After considering all relevant facts, it was decided that the lower level admonishment was appropriate, as opposed to the higher level reprimand. 0120140816 4 Harassment Claim With respect to Complainant’s harassment claim, S1 explains that around noon, Complainant had returned from a detail at another location and was expected back to work. The Agency policy is that if you are on travel and you can come in and perform at least two hours of work before or after your travel you are supposed to either report to work or request leave. S1 also states that Complainant never showed up and she never called to let anyone know she was not coming in. Accordingly, S1 was asked to find out why this occurred. S1 states Complainant wanted clarification regarding leave that was allowed for lunch on her return from detail, and shortly thereafter, submitted a leave request. S1 explains that it was decided to remind Complainant of the policy and note that she was basically AWOL on Friday after she did not show up for work. S1 also explains that a fact finding was conducted on the data integrity issue and whether or not Complainant instructed LG to cancel cases. S1 notes that Complainant provided the statement saying she did not advise LG, nor was she informed, regarding the cancelling of work products in fiduciary. S1 also explains that after a meeting with Complainant he asked her to remain so that they could address what he saw as a communication issue between them so that they did not frustrate each other. Aside from Complainant’s bare unsupported assertions, the record is devoid of evidence that any responsible management official was motivated by discriminatory or retaliatory animus with respect to any employment action raised herein.3 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 which adopts the AJ’s decision that Complainant failed to establish discrimination or retaliation as alleged. 3 With respect to Complainant’s argument that the AJ should have dismissed the Agency's motion on the ground that it was not timely filed, we note that it is within the sound discretion of the AJ whether to consider a motion for summary judgment, and it is also within the sound discretion of the Administrative Judge whether to grant leave to file any pleading outside of the time initially prescribed. Moreover, an AJ can, and often does, grant summary judgment sua sponte. 0120140816 5 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. 0120140816 6 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 1, 2016 Date Copy with citationCopy as parenthetical citation