Tasia C.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Jul 26, 2018

0120181387 (E.E.O.C. Jul. 26, 2018)

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

Tasia C.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.

Appeal No. 0120181387

Hearing No. 430-2015-00134X

Agency No. HS-USCG-01611-2014

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the EEOC Administrative Judge (AJ)’s decision dated January 30, 2018,
which effectively became the Agency’s final decision, finding no discrimination with regard to
her 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, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Budget Analyst, GS-560-12, in the U.S. Coast Guard Finance Center in Chesapeake, Virginia.
On August 11, 2014, Complainant filed her complaint alleging discrimination based on disability
(osteoarthritis) and in reprisal for prior EEO activity when from March 21, 2014, to August 6,
2014, the following occurred:

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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(1) The Agency failed to submit her injury claim paperwork related to her Office of
Workers’ Compensation (OWCP) claim;

(2) The Agency forced her to request a loan; and

(3) The Agency failed to change her email address.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On June 26, 2015, Complainant filed a Motion for
Summary Judgment. On July 6, 2015, the Agency filed a Motion for Summary Judgment, which
also responded to Complainant’s Motion. On July 13, 2015, Complainant filed her Response to
the Agency’s Motion and on July 14, 2015, the Agency filed its Reply in Support of its Motion.
On January 30, 2018, the AJ issued a decision without holding a hearing, finding no
discrimination. The Agency did not issue its final order within the requisite time frame and the
AJ’s decision thus effectively became the Agency’s final decision. 29 C.F.R. § 1614.109(i).
Complainant appeals the Agency’s final decision.

ANALYSIS AND FINDINGS

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. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

Initially, the AJ noted that Complainant, in her Motion for Summary Judgment and her response
to the Agency’s Motion, did not include the basis of disability and recharacterized the issue as:

Whether Complainant was subjected to discrimination in reprisal for her prior EEO
activity when the Agency failed to timely process her Continuation of Pay (COP) claim
and her OWCP claim.

As such, we will review the complaint as clarified above by Complainant. Complainant does not
dispute this on appeal. In the instant case, the AJ adopted the facts in the Agency’s motion in its
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entirety. At the relevant time, Complainant was a Budget Analyst in the U.S. Coast Guard
Finance Center. She claimed that on March 7, 2014, she sprained her thumb at work which
aggravated her osteoarthritis in her hand and since then, she had not been to work. Complainant
indicated that from March 2014, to July 2014, her supervisor (S1) failed to submit her CA-7
form because Complainant did not fill out her part of CA-7 correctly and she was told she was
not eligible for COP.

S1 indicated that on March 7, 2014, Complainant reported to him that she had an injury to her
hand and he told her to check it out with a doctor or at the hospital. S1 stated that later on that
day she told him that she had decided to go to the emergency room. S1 stated there was no
discussion of OWCP forms on that day.

Complainant’s Command Management and Program Analyst (CMPA), who was the Command’s
staff advisor and liaison with the Agency’s Human Resource (HR) Department and other civilian
personnel offices, indicated that he was involved with Complainant’s injury claim forms to assist
her and the Agency. The CMPA stated that the forms would be processed through the HR office
which in turn would submit the claim forms to the Department of Labor. The CMPA stated that
on March 7, 2014, when S1 notified him of Complainant’s March 7, 2014 injury, he provided S1
with information about the CA-1 form because at that time Complainant’s injury was considered
a traumatic injury. The CMPA indicated that the following week, Complainant submitted her
part of the completed OWCP forms to S1 and then S1 brought the OWCP forms to him and
asked for assistance on how to complete S1’s part of the forms as this was S1’s first time filling
out the forms. The CMPA stated that he then provided S1 with guidance and sent the completed
OWCP forms to HR within 24 hours. The HR office indicated that they forwarded
Complainant’s OWCP forms to the Department of Labor in a timely manner.

Regarding Complainant’s COP, the CMPA indicated that based on the recommendation by
Complainant’s Case Manager at the Department of Labor, he submitted the documentation to
controvert her COP claim. Complainant’s COP claim was ultimately granted and she received
45 days of COP which was back dated to the time of her injury at issue and she then received
OWCP compensation. The record indicates that on May 28, 2014, the HR office notified
Complainant that her timecard for the time period of March 8, 2014, to April 21, 2014, was
validated and certified to reflect COP for the 45 days following her report of injury except for
those hours that she actually worked.

The Agency further noted that Complainant did not submit any medical documentation to the
Agency showing that she suffered a traumatic injury on March 7, 2014, in support of her COP
claim. The Agency stated that any delay in Complainant’s receiving any monies as a result of
her claim for COP and/or for OWCP compensation was not as a result of any fault on the part of
the Agency; rather it was due solely to either actions or failure to act by Complainant and/or was
due to processing at the Department of Labor. The Agency stated that Complainant did receive
COP and she had been receiving OWCP compensation and remained on OWCP compensation to
the present time regarding her March 7, 2014 injury. Complainant acknowledged that on June
30, 2014, her COP was finally granted and her OWCP claim was approved on July 25, 2014.
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The Agency noted that meanwhile, Complainant applied for disability retirement which was
approved by the Office of Personnel Management on April 4, 2014.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s statement of
undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the
Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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),
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.
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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. 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

July 26, 2018
Date