[Redacted], Glinda M., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2021001404 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glinda M.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2021001404 Hearing No. 451-2019-00098X Agency No. ARBLISS18MAY01643 DECISION On December 22, 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 December 9, 2020, 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 Dental Hygienist, Grade GS-07, at the Agency’s Chambers Dental Clinic in Fort Bliss, Texas. On July 23, 2018, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency discriminated against her based on sex (female) and in reprisal for prior protected EEO activity when, on March 23, 2018, the Dental Commander was influenced by the Health System Assistant (Credentials Coordinator) to issue Complainant a summary suspension of clinical privileges. 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 2021001404 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On October 20, 2020, the AJ notified the parties of his proposed summary judgment decision. Complainant submitted multiple objections to the AJ’s notice. The Agency did not object to the AJ’s notice. On November 23, 2020, the AJ issued his decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant submits a memorandum in which she contended that she had resolved her credentialing issue and that her suspension from Agency practice had been lifted on May 19, 2019. Complainant asserts that she had provided the appropriate papers, but the Agency arbitrarily summarily suspended her from working in the dental clinic. Complainant further argues that the Agency failed to consider the injuries to her shoulder, back and hand that she had sustained as a result of unsafe and abusive working conditions its dental clinic. ANALYSIS AND FINDINGS 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. See 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. See 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. 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 identify specific evidentiary deficiencies within the record. She did not prove that there were substantive factual disputes. We review of the merits of Complainant’s discrimination claim in accordance with the U.S. Supreme Court’s three-part analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 3 2021001404 For Complainant to prevail, she must first establish prima facie of disparate treatment, by presenting facts that, if unexplained, reasonably infer discrimination, i.e., that a prohibited consideration was a factor in the Agency’s employment action. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The second burden shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact-finder by a preponderance of the evidence that the Agency acted based on animus toward her EEO-protected characteristics. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). At all times, Complainant bears the burden to show by preponderant evidence that the Agency’s reasons for the decisions at issue were pretexts to mask unlawful discriminatory motives. See U.S. Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Reeves v. Sanderson Plumb. Prod., Inc., 530 U.S. 133, 143 (2000). We presume, arguendo, that Complainant established a prima facie case on the raised bases. We now examine the Agency’s stated reason behind the March 2018 notice that Complainant’s privileges to provide patient care at the Fort Bliss dental clinic were held in abeyance. The Dental Commander testified that she had revoked Complainant’s authorization to see patients as a dental hygienist because of a report from the National Practitioner Data Bank that Complainant had been permanently suspended from practicing health care for incompetence. The Dental Commander acknowledged that Complainant did possess a dental hygienist license from the state of Florida. However, the Credentials Coordinator explained that Agency regulations on clinical care quality still required that the Dental Commander issue the abeyance notice upon learning of Complainant’s suspension in the National Practitioner Data Bank. Thereafter, Complainant had thirty days resolve the matter by providing the Agency with a favorable report from the National Practitioner Data Bank. Complainant did not do so. As a result, the Agency’s denial of privileges at its dental clinics became permanent. Complainant did not deny that she was suspended in the National Practitioner Data Bank. Additionally, Complainant accused the Credentials Coordinator of sabotaging her employment by spreading rumors that Complainant was a “bad person” and that Complainant “did bad things.” We presumed that Complainant did possess a Florida dental hygienist license and did not know about the National Practitioner Data Bank. Nonetheless, we ultimately find that the Agency articulated a regulatory reason that was both legitimate and non-discriminatory. Finally, we considered whether Complainant showed the Agency’s justification to be pretextual. Complainant did not bear her evidentiary burden. Complainant has failed to prove to us or persuade us that the Agency was actually motivated by animus against her sex or against her prior EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing finding no discrimination. 4 2021001404 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. 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). 5 2021001404 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 June 7, 2021 Date