[Redacted], Davina W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 17, 2022

Appeal No. 2020004886 (E.E.O.C. Mar. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Davina W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004886 Hearing No. 540-2017-00287X Agency No. 200P-0678-2016900251 DECISION On September 3, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 3, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant previously worked as a Contact Specialist, GS-12, at the Agency’s Southern Arizona Health Care System facility in Tucson, Arizona. In her former position, Complainant’s supervisors were the Procurement Officer (Officer) and the Administrative Officer to the Associate Director (Administrative Officer), and her second level supervisor was the Chief Logistics Officer (Chief). In 2015, after leaving the Agency, Complainant states she was hired for a position that required a top secret clearance. 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. 2020004886 2 Report of Investigation (ROI) at 65. Following the background investigation, she was informed that she would not be receiving the necessary security clearance. Id. On March 21, 2016, Complainant requested a copy of the information in her background report and became aware that the Chief made negative comments about her to the Security Investigator. Id. at 67. Complainant alleged that because of the Chief's negative statements, she did not receive a security clearance. Id. She also asserted that she applied for two federal positions, both of which informed her that they were not able to obtain a reference from Complainant’s designated reference, the Administrative Officer. Id. at 68. She made this discovery on December 12, 2016. Complainant explained that because the Administrative Officer did not serve as a reference for her, she was not considered for the positions. ROI at 68. Subsequently, Complainant argued that the Chief's comments were related to her prior EEO activity because he seemed very uncomfortable with her EEO complaint. She similarly stated that the Administrative Officer's decision, not to provide a reference, was also related to her prior EEO activity because the Administrative Officer had previously provided a reference for her. ROI at 68. However, according to the Chief, he told the Security Investigator that Complainant produced high quality work, but that he had reservations due to her sometimes paranoid discussions. Id. at 113. He explained that, over the years, Complainant had come to his office and sometimes relayed conversations which were paranoid in nature. Id. He clarified that he was not aware of any prior EEO activity. Id. The Administrative Officer reported that she was contacted for an employment reference by a government agency in December 2016. Id. at 124. She explained that she traded voicemails with the individual who called but was never able to connect with him to provide a reference. Id. The Administrative Officer stated that she would have provided a reference for Complainant if she had been able to speak with the person requesting a reference. Id. Further, the Administrative Officer explicitly stated that Complainant's prior EEO activity was not a factor. Id. at 125. On July 26, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On March 21, 2016, Complainant learned that the Chief Logistics Officer submitted negative information to the Office of Personnel Management, which was considered in Complainant's top-secret security clearance investigation, and was submitted in retaliation of her previous complaint; and 2. On December 12, 2016, she learned that the Administrative Officer, her designated reference, had not provided reference information to the 2020004886 3 requesting government entity, although Complainant requested that she provide the reference. 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 May 30, 2019, the Agency filed a Motion for Summary Judgment. After considering the motion, Complainant’s response, and the Agency’s reply, the AJ assigned to the case granted the motion. On July 30, 2022, the AJ issued a decision without a hearing. In his decision, the AJ determined that Complainant offered no evidence supporting her assertion that she did not receive her security clearance due to the negative statements provided by Chief. Rather, he found that Complainant merely provided speculation. The AJ also determined that Complainant did not rebut Chief's statements. As to Complainant’s claim that the Administrative Officer did not serve as a reference for her, the AJ adopted the Agency's Motion and Reply in its entirety. Therein, the Agency argued that the Administrative Officer did in fact attempt to contact the government official that reached out to her but was unsuccessful. Moreover, the Agency noted that Complainant, herself, stated that the requesting agency informed her that she should provide an alternate reference. As such, the AJ concluded that the Agency provided sufficient proof of legitimate, nondiscriminatory reasons for its actions. Following the AJ’s decision, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that she was subjected to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency denied her due process by effectively avoiding discovery. She contends that the Agency did not make any discovery requests, refused to participate in discovery, and then filed for summary judgment based upon the fact that she was unable to establish a prima facie case. ANALYSIS AND FINDINGS 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. 2020004886 4 In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Summary Judgment We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant 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. In addition, as to Complainant’s contentions that she was denied due process with regard to the discovery process, we note that an AJ has broad discretion in the conduct of a hearing, including matters such as issuing discovery orders, scheduling, and witness selection. See 29 C.F.R. § 1614.109(e). We find that the record is adequately developed and find that Complainant has not shown that her discovery submission would have resulted in a different legal outcome. 2020004886 5 Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248. 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review, we find that assuming, arguendo, Complainant established a prima facie case of discrimination based her protected classes, the Agency has articulated legitimate. nondiscriminatory reasons for its actions in claims 1 and 2. Specifically, for claim 1, the Chief stated that he told the Security Investigator that Complainant submitted high quality work, but that he had reservations due to her sometimes paranoid discussions. He explained that during the years he supervised her, she relayed conversations which were paranoid in nature. Regarding claim 2, the Administrative Officer explained that she would have provided a reference for Complainant, if she had been able to speak with the person requesting the reference. However, she was unable to get in touch with the corresponding individual. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant maintains, in pertinent part, that the Chief was uncomfortable with her prior EEO activity and that is why he provided negative information about her. Similarly, she stated that the Administrative Officer had previously been a reference and, as such, she surmised that her prior EEO activity was the reason for her refusal to provide one as described. We agree with the AJ, that Complainant merely speculates, without any supportive evidence, that her prior EEO activity motivated the Agency officials’ actions. Chief explicitly stated that he was unaware of Complainant’s prior EEO activity, and Administrative Officer stated Complainant’s protected activity was irrelevant. Moreover, Complainant has not effectively disputed the Agency’s proffered legitimate, non-discriminatory reasons. Complainant has failed to prove that the Agency's reasons for its actions were a pretext to mask discrimination based on her protected classes or show that the Agency was motivated by discriminatory animus. Therefore, we find that the AJ’s decision, and the Agency’s adoption of that decision, to be proper. 2020004886 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020004886 7 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 March 17, 2022 Date