U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lelia D.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Appeal No. 0120181751
Hearing No. 430-2018-00135X
Agency No. 200405582017101700
DECISION
On May 8, 2018, 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
April 9, 2018, 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.
ISSUE PRESENTED
Whether the EEOC Administrative Judge erred in granting summary judgment in the Agency’s
favor regarding Complainant’s claim that she was subjected to a hostile work environment based
on race (black), disability (physical), and sex (female) when she was issued a temporary disability
parking pass after she submitted medical information in support of a permanent parking pass.
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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BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrator on
Duty at the Agency’s facility in Durham, North Carolina. On June 6, 2016, Complainant filed an
EEO complaint alleging that the Agency discriminated against her as set forth above. Complainant
alleged that she was harassed by A1, who worked in the Occupational Health Program.
Complainant stated that she believed A1 deliberately did not issue her a permanent parking pass
after she submitted medical documentation to support her request. Complainant indicated that
other employees who are white have received permanent parking passes and she believed that this
was discriminatory.
Record evidence indicated that the Agency’s policy was that the Occupational Health Provider
made recommendations to the Agency Police and Security Service to issue temporary parking
permits while Human Resources made final decisions on who would receive permanent disability
parking permits. The Agency provided evidence that Complainant had been issued several
previous disability placards in 2015 and 2016, for up to six months. A1 stated that he approved
Complainant permits in the past because she worked night shift and there was no issue with night
parking. During normal business hours, disability parking was at a premium because it was needed
for disabled veterans. A1 submitted a third request on Complainant’s behalf for a one-month
parking permit dated on or about January 30, 2017, which was approved. At this time, Complainant
was working a new shift during day-time. Complainant was notified by email on January 31, 2017
that her one-month parking permit was available for pick-up.2 A1 denied that he had discriminated
against Complainant. According to A1, he was not aware of the Complainant’s race until he met
her the day of mediation.
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.
Subsequently, the AJ issued a notice to the parties that he intended to issue a decision without a
hearing. The parties were given the opportunity to respond. The AJ issued a decision on April 9,
2018. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal.
The Agency submitted a brief supporting its final order.
2 According to the Agency, the last request it received for a parking permit for Complainant was
in January 2017, and it never received a request regarding a permanent parking pass for
Complainant. Moreover, the Agency noted that, during the events of this complaint, Complainant
did not make a reasonable accommodation request for a disabled parking permit.
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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. 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”).
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.
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. Dep’t of Def., 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.
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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 AJ 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 AJ
could order discovery, if necessary, after receiving an opposition to a motion for a decision without
a hearing).
Upon review of the record, we find that there is no genuine issue of material fact presented here.
The record has been adequately developed, Complainant was given ample notice of the Agency’s
motion for a decision without a hearing, she was given a comprehensive statement of the allegedly
undisputed material facts, she was given the opportunity to respond to such a statement, and she
was given the chance to engage in discovery before responding, if necessary. We find that, even
assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as
explained below. Therefore, we find that the AJ’s issuance of a decision without a hearing was
appropriate.
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. Texas Dep’t of Cmty. Affairs 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).
Assuming, arguendo, that Complainant established a prima facie case on the alleged bases, we find
that the Agency articulated a legitimate, nondiscriminatory reason for its actions. A1 stated that
during normal business hours, permanent parking was needed for disabled veterans and therefore
parking was limited. A1 had issued her several previous permits in 2015 and 2016, for up to six
months, although he made it clear that she could only continue to use the permits on the night shift.
We find no persuasive of pretext. There is no evidence that co-workers outside her protected
groups (black, female, disabled) were treated more favorably in that they were issued a permanent
permit. Finally, Both the Agency and the AJ indicated, without any dispute from Complainant,
that she did not allege that she was denied a reasonable accommodation, nor did ever submitted a
request for a reasonable accommodation for a permanent parking permit.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.
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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. 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.
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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 19, 2019
Date
