[Redacted], Michelle C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 19, 2021Appeal No. 2021001708 (E.E.O.C. Apr. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michelle C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001708 Hearing No. 440-2020-00030X Agency No. 200J-0537-2019100434 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND During the period at issue, Complainant was employed as a Health Technician at the Agency’s Jesse Brown VA Hospital in Chicago, Illinois. During the relevant times, S1, Nurse Manager, was Complainant’s first line supervisor and S2 was her second line supervisor. Complainant filed a complaint alleging the following: Claim A: She was subjected to a hostile work environment based on reprisal (prior EEO activity), as evidenced by the following: 1. On October 30, 2018, S1 gave her a lower rating of excellent on her annual performance evaluation; and 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. 2021001708 2 2. On October 30, 2018, S1 yelled at her when she questioned him about her appraisal. Claim B: She alleged that she was subjected to a hostile work environment based on disability (spinal stenosis, lumbosacral spondylosis without myelopathy) and reprisal (prior EEO activity), as evidence by the following: 1. From December 4, 2018 through January 28, 2019, S1 entered her Annual Leave and set up meetings with Human Resources and her Union without her knowledge, asked her to provide medical documents to verify her use of Sick Leave and disrespected her when she discussed it with him; and B1, his assistant manager, entered her leave without her approval, and had her prove that she was at work; and 2. In November 2018 and continuing, S1 charged her with being Absent Without Leave. After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for summary judgment, which was opposed by Complainant. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The record indicates that S1 gave Complainant a rating of “Excellent” for her 2018 performance appraisal. Complainant did not submit a self-assessment for her 2018 performance appraisal; therefore, S1 felt he did not have enough supporting information to justify a rating of “Outstanding.” In October 2018, Complainant and S1 met to discuss her performance appraisal. According to Complainant, after she signed the appraisal S1 told her that if she did not like it, she could file a grievance. She maintained that he then yelled the same comment to her from his doorway as she walked down the hall. The record further indicates that between December 4, 2018 to January 28, 2019, S1 did not enter any annual leave on behalf of the Complainant. Complainant had an active Office of Workers’ Compensation Program (OWCP) case, which began after her injury on September 15, 2016. Complainant had various work limitations as a result of her injury, and she performed light-duty assignments since September 2016. On January 25, 2019, Complainant attended a meeting with S1, D1 and D2, Human Resource Specialists for OWCP, and D3, Human Resources Supervisor. During this meeting, the procedures for requesting annual and sick leave when an employee has an OWCP case were discussed. S1 believed that when Complainant was requesting leave for an OWCP medical appointment, she had to provide advance notice and documentation that she went to the appointment. 2021001708 3 Although S1 was aware of Complainant’s work injury and work limitations through her OWCP case, he was not aware of Complainant having a disability. According to S1, B1 does not have the ability to enter leave for Complainant and would have to make a request to a Timekeeper in order to close a timecard. From November 2018 until May 2019, the record indicates that Complainant was never charged with being Absence Without Leave (AWOL), nor did she receive a disciplinary letter or memo stating she was being charged AWOL. On November 23, 2018, Complainant called in sick and initially was marked AWOL because she did not have any sick leave. S1 approved her sick leave request as annual leave and her AWOL status was reversed. The AJ, in granting summary judgment in the Agency’s favor, found that there were no genuine issue of material fact or issues of credibility. 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). In order 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 has failed to establish such a dispute. We note that Complainant made no specific argument opposing the Agency’s motion for a decision without a hearing and made no argument on appeal. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 2021001708 4 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). 2021001708 5 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 April 19, 2021 Date Copy with citationCopy as parenthetical citation