Maxima S.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120172918 (E.E.O.C. Oct. 25, 2018)

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

Maxima S.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120172918

Agency No. 2004-0558-2014102531

Hearing No. 430-2015-00221X

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 July 24, 2017
final decision 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Medical Support Assistant at the Agency’s
Veterans Affairs Medical Center in Durham, North Carolina.

On August 11, 2014, Complainant filed the instant formal complaint. Complainant claimed that
she was subjected to harassment and a hostile work environment based on age (over 40) and in
reprisal for prior EEO activity when:

1. in November 2012, during Complainant’s employee performance appraisal review,
she was advised she would never work check-in again;

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.
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2. on an unspecified date in 2012, the Acting Nurse Manager instructed her to write a
Report of Contact regarding an incident with a Medical Support Assistant. However,
no action was taken;

3. on an unspecified date in 2012, the Medical Support Assistant complained that
Complainant was performing the Critical Element duty of pre-registration. This this
resulted in Complainant being informally disciplined;

4. from February 2013 through February 2014, she was subjected to a hostile work
environment when she was continuously isolated, treated indifferently, and
intimidated within the workplace;

5. she was marked Absent Without Official Leave (AWOL) for 15 minutes on
November 1, 2013, and for 30 minutes on February 4, 5, 6, and 18, 2014;

6. on February 11, 2014, she became aware that she was rated unacceptable on her FY
2013 Employee Performance Appraisal; and

7. on unspecified dates, Complainant’s previous supervisor did not rotate her into the
various functions of her position i.e., check-in, check-out, and mental health, which
denied her equal opportunity, training and a promotion.

After an investigation, Complainant was provided a copy of the investigative file, and requested
a hearing before an EEOC Administrative Judge (AJ). On July 19, 2017, the AJ issued a
decision by summary judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

In June 2012, Complainant was involved in an altercation with another Medical Support
Assistant (Employee 1). Complainant claimed that she asked Employee 1 a question about the
check-in area and Employee 1 became upset and started shaking her finger in Complainant’s
face. The Acting Nurse Manager advised both Complainant and Employee 1 to write a report of
contact concerning the incident. Complainant further claimed that she was never contacted after
turning in her report of contact to the Acting Nurse Manager.

In August 2012, Employee 1 made a complaint to management, stating that Complainant held up
the line on numerous occasions when she checked in patients. Because of this complaint,
Complainant was given a document from the Acting Nurse Manager which Complainant
believed was a warning letter.

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In November 2012, Complainant asserted that she was checking in patients when she was
informed by the Acting Nurse Manager that she could not work in check-in anymore because she
was taking too long to check in patients. Th Acting Nurse Manager stated that she received
complaints from physicians and nurses regarding Complainant’s work. The physicians and
nurses claimed that the long check in time affected their appointment times and scheduling. As a
result, Complainant was moved to the call center where she answered phones with three other
employees.

In February 2014, Complainant was approached by the timekeeper stating that she was being
charged AWOL by the former supervisor for November 1, 2013. Thereafter, on February 11,
2014, Complainant was informed that her work performance was rated unacceptable on her 2013
Employee Performance Appraisal.

Regarding claim 1, Complainant asserted that in November 2012, during her employee
performance appraisal review, she was advised she would never work check-in again.

The Acting Nurse Manager (year of birth 1953, no prior protected activity) explained that during
the relevant period there were problems with Complainant’s performance. Specifically, the
Acting Nurse Manager stated that Complainant was taking a long time checking patients in and
she received many complaints from the physicians and nurses “because they couldn’t see their
patients timely.”

The Acting Nurse Manager stated that she decided not to have Complainant at the check-in
anymore. The Acting Nurse Manager stated that because she was the Acting Nurse Manager,
she checked with her supervisor about the complaints concerning Complainant’s performance
“to be sure that I was doing the right thing because I’ve never been a manager before…but
because there were so many complaints, I asked not to have [Complainant] at the desk, to just
answer the phone.”

Regarding claim 2, Complainant alleged that on an unspecified date in 2012, the Acting Nurse
Manager instructed her to write a Report of Contact regarding an incident with a Medical
Support Assistant. However, no action was taken.

The Acting Nurse Manager stated at that time, both Complainant and Employee 1 were working
at the desk and “the line was backing up. and from what I remember [Employee 1] was trying to
get [Complainant] to move a little faster. And I think in talking with her [Employee 1] reached
over to touch [Complainant] to kind of I guess emphasize the point she was making, ‘you don’t
have to do every single one of these screens’…and that was my understanding of what the
concern was that [Complainant] had, was that [Employee 1] had touched her and she felt that
was a hostile move.”

The Acting Nurse Manager stated that because she did not witness the incident, she asked
Complainant and Employee 1 to write a Report of Contact “of their view of what had happened.”
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The Acting Nurse Manager stated that she also had a talk with Employee 1 and instructed her not
to act in that fashion again.

Regarding claim 3, Complainant alleged that on an unspecified date in 2012, Employee 1
complained that she was performing the Critical Element duty of pre-registration, which resulted
in her being informally disciplined.

The Acting Nurse Manager stated that while she does not recall writing Complainant up, she
asked Complainant not to do everything that is in the screens “because the patients have to get to
the providers and be on time. And we had a line backed up.”

Regarding claim 4, Complainant asserted that from February 2013 through February 2014, she
was subjected to a hostile work environment when she was continuously isolated, treated
indifferently, and intimidated within the workplace.

The Nurse Manager (year of birth 1951, prior protected activity), also Complainant’s former
supervisor, stated that because Complainant was taking too long checking in patients,
management decided to move Complainant to the call center where she answered phones with
three other employees. The former supervisor stated that “for the betterment of the veterans in
the clinic, it was decided that she would perform better, probably, not in an open area, but maybe
better in a call center…the call center consists of four people, so there was never anywhere
where [Complainant] was just isolated in that particular area.”

Regarding claim 5, Complainant alleged that she was marked AWOL for 15 minutes on
November 1, 2013, and 30 minutes on February 4, 5, 6, and 18, 2014.

The former supervisor stated that she does not recall the specific days Complainant was marked
AWOL “but it should have been more than that.
But that is very true. I mean, [Complainant] just never came to work on time. Despite repeated
counseling, despite anything. That’s just her thing… she was supposed to be at work at 8:00, she
would come late, then she would do whatever, her little thing…again, I said there were a lot of
AWOLs for the days - - the specific days.”

Regarding claim 6, Complainant alleged that on February 11, 2014, she became aware that she
was rated unacceptable on her FY 2013 Employee Performance Appraisal.

The former supervisor acknowledged giving Complainant an unacceptable rating for her FY
2013 Employee Performance Appraisal. Specifically, the former supervisor stated that there
were constant complaints about Complainant’s performance, reporting to work late, and leaving
the call center with no notice.

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Further, the former supervisor stated that other Medical Assistant Specialists had to do the
Veteran Identification (VID) cards because Complainant was taking so long to do the VID cards.
The former supervisor stated that Complainant would make the patients “wait an hour, hour and
a half, before she’d get around to doing their VID card. When you’d go to look for her to see
why she hadn’t done the card, she wasn’t in the call center, she was nowhere to be found.”

Regarding claim 7, Complainant asserted that on unspecified dates, Complainant’s previous
supervisor did not rotate her into the various functions of her position i.e., check-in, check-out,
and mental health which denied her equal opportunity, training and a promotion.

The former supervisor stated that Complainant was provided opportunities to work in various
functions of her position but she could not keep up. For instance, the former supervisor stated
that when management offered training, Complainant got the same training as other Medical
Support Assistants but “when she had her opportunity to do it, she could not do it.”

The instant appeal followed.

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. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

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. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
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For complainant to prevail, she must first establish a prima facie 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).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination on any basis alleged.

To prove her harassment claim, Complainant must establish that she was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of a protected basis – in this case, age and/or retaliatory animus.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself. Here, the AJ found that the evidence of record did not
establish that Complainant was subjected to harassment based on age and prior protected
activity. We determine that the AJ’s analysis that Complainant failed to prove her harassment
claim was also proper.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing,
finding no discrimination.

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 25, 2018
Date