0120062872
09-07-2007
Phyllis A. Yellow, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Phyllis A. Yellow,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01200628721
Hearing No. 320-2005-00313X
Agency No. IHS-0030-05
DECISION
Complainant filed an appeal from the agency's April 13, 2006 final
decision 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 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.
At the time of events giving rise to this complaint, complainant worked
as a Medical Records Technician at the agency's Indian Health Services,
Rosebud Service Unit facility in Rosebud, South Dakota. Complainant
was initially hired as a temporary employee. On January 25, 2004,
complainant's position was converted to permanent status. On June
21, 2004, complainant requested leave to take her son to a health care
provider. She subsequently requested leave for June 22, 23 and 24, 2004.
When complainant returned to work on June 25, 2004, she discovered that
her access to the agency computer system was revoked and she received a
letter of removal, effective June 23, 2004, citing two specifications,
complainant's failure to eliminate a backlog of filing and her failure
to pay a personal debt owed to an agency vendor.
On October 4, 2004, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of national origin (Native
American), sex (female), disability (diabetes, Sweets Syndrome, Rheumatoid
Arthritis), age (44), and in reprisal for prior protected EEO activity,
when:
Complainant received a Letter of Removal, effective June 23, 2004.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case notified the parties
of his intent to issue a decision without a hearing. The agency filed a
brief in response, in which the agency supported the AJ's notice of his
intent to issue findings and conclusions without a hearing. Complainant
objected to the AJ's notice and restated her request for a hearing.
Over complainant's objection, the AJ issued a decision without a hearing
on February 28, 2006. The agency issued its final decision on April
13, 2006 fully implementing the AJ's decision, finding that complainant
failed to prove that she was subjected to discrimination as alleged.2
In his decision, the AJ found that complainant failed to show that she
was a qualified person with a disability as defined by Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
Accordingly, the AJ found that complainant was not covered by the
protections of the Rehabilitation Act and therefore her complaint, to
the extent it was based thereon, did not establish a prima facie case
of disability discrimination.
With respect to sex, age and national origin, the AJ found that
complainant failed to show that similarly situated employees not in her
protected classes were treated more favorably. Accordingly, the AJ found
that complainant did not establish a prima facie case of national origin,
sex or age discrimination.
Regarding complainant's reprisal claim, the AJ noted that complainant did
not engage in the EEO process or protected EEO activity3 until July 2004,
which was after the effective date of complainant's termination.
Assuming for argument's sake that complainant had established a prima
facie case on any of the alleged bases, the AJ found that nothing in the
record showed that the agency's reasons for terminating complainant in
June 2004, were pretext. Rather, the AJ found that all of the employees
in complainant's position were directed to use overtime to eliminate
a backlog of work and that the other employees did use overtime and
eliminated the backlog assigned to them. Complainant, on the other hand,
did not make use of overtime and did not eliminate her backlog of work.
Additionally, complainant did not dispute that she owed a personal bill
to an agency vendor that remained unpaid after the invoice was presented
to her and after she said she would arrange to pay it. The AJ found
no dispute between the parties of the material facts and drawing every
inference in complainant's favor, that complainant had failed to show
that discrimination occurred when she was terminated.
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 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing 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).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
We find the AJ properly issued a decision without a hearing in the
instant case. Neither party disputes the material facts of this case.
Complainant does not deny that she owed a debt to an agency contractor
and complainant does not deny that she did not work overtime and that her
filing was not brought current. While the agency's decision to terminate
complainant may seem harsh, we do not find any evidence that the agency
tolerated similar conduct in other employees, not in complainant's
protected classes. Moreover, we find nothing in the record shows that
complainant's national origin, sex or disability4 motivated the agency's
decision to terminate her employment. We therefore AFFIRM the agency's
final decision finding no discrimination.
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 7, 2007
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above referenced appeal number.
2 In his decision, the AJ did not consider complainant's harassment
claim (as framed by the agency) apart from the events that led to her
termination. We concur with the AJ's framing of the complaint and find
neither party appeals the AJ's framing of the complaint.
3 We observe that the record shows that complainant complained about many
workplace events and conditions, however, complainant did not engage in
the EEO complaints process until after she was terminated. Additionally,
we find that none of complainant's other workplace complaints alleged
discrimination.
4 We make no finding in this decision regarding whether complainant
is an individual with a disability. We note that complainant does not
identify any other employee who failed to pay a personal debt charged
to the agency who was not also terminated.
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0120062872
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062872