U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mickie B.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181741
Hearing No. 440-2014-00190X
Agency No. 200J05782014101916
DECISION
On April 30, 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 23, 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge, (AJ) correctly determined that Complainant was not
subjected to a hostile work environment based on race, age, reprisal (prior EEO activity), and
national origin when:
1. On March 3, 2014, Complainant’s supervisor, S1, commented that he was going to
discipline Complainant regarding her participation in Picture Archiving Communication
System (PACS), but it did not happen;
2. On March 4, 2014, Complainant was notified of her non-selection for the position of
Diagnostic Radiological Technologist Supervisor, Vacancy Announcement No. HN-0038-
1024068-BB;
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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3. On March 7, 2014, a coworker, C1, questioned Complainant about not doing a film on a
patient;
4. On March 11, 2014, a Radiology Manager, C2, accused Complainant of blocking the
posting of the PACS position because she went to EEO; and
5. On March 18, 2014, Complainant’s tour of duty was changed, and she was not allowed to
work every other Saturday.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clinical
Instructor/Interventional Technologist, GS-10 at the Agency’s Hines Veterans Affairs, (VA)
Hospital facility in Hines, Illinois. On April 9, 2014, Complainant filed an EEO complaint, (with
a subsequent amendment on March 31, 2015) alleging that the Agency discriminated against her
on the bases of race (African-American), national origin (American), age (56), and reprisal for
prior protected EEO activity under Title VII, as set forth above.
Prior to the instant Complaint, Complainant had previously engaged in EEO activity. As part of
the EEO process, Complainant and the Agency executed a settlement agreement in December
2013. The terms of the settlement agreement required the Agency to afford Complainant an
opportunity to receive training on the PACS for approximately six months from January 2014 until
June 2014. Per the terms of the settlement agreement, only upon completion of Complainant’s
detail in June 2014 could the PACS Manager Assistant position be posted.
Claim 1:
Complainant’s supervisor, S1, asked her coworker, C2, during the workday about Complainant’s
whereabouts but C2 did not know where she was at that time. Complainant alleged that S1 then
told C2 that he was going to “write her up.”
S1 stated that he did not threaten to discipline Complainant but was instead trying to determine
her whereabouts. He denied indicating he intended to “write up” Complainant.
C2 affirmed that S1 did not threaten to discipline Complainant, but instead indicated that he was
going to “send an email” regarding her whereabouts.
Claim 2:
This claim involves a March 2014 selection for the position of Diagnostic Radiological
Technologist Supervisor. Following the close of the vacancy announcement, management was
provided a “certificate of eligibles” for individuals who were deemed “eligible” for the position.
Human Resources (HR) determined that 12 individuals were eligible. This included Complainant’s
coworker, C1, and Complainant.
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The Agency convened an interview panel of five individuals including S1 and four females. Ten
individuals were initially scheduled for interviews, however, only nine completed the interview
process. The panel used the Agency’s performance-based interview process to conduct
standardized interviews for all candidates. Candidates were asked the same questions and the
panelists independently scored each candidate based on their perception of the candidates’
responses.
The record indicates that every member of the interview panel believed that C1 performed better
than Complainant during the interview. C1 was awarded scores from the interview panel as
follows: 44, 30, 48, and 43. Complainant was awarded scores from the interview panel as follows:
37, 21, 26, and 35. Each panelist kept detailed notes on their respective interview forms indicating
why they awarded each candidate their respective scores.
Complainant was afforded an opportunity to review the interview notes of each panelist. She
identified no answer that she gave in the interview that was not accurately reflected in the notes;
and she did not argue that the notes recorded something that she did not say. After considering
each candidate’s interview performance, the panel unanimously identified C1 as the most qualified
candidate and recommended her for the position. Because of Complainant’s interview
performance, she was ranked the seventh out of ten overall candidates. Based on the
recommendation of the interview panel, Complainant’s second level supervisor, (S2) selected C1
for the position. The panelists, including S1, all stated that they were not aware of any of
Complainant’s prior protected activity when they participated on the interview panel.
Claim 3:
Complainant alleged that she had an encounter with C1 regarding Complainant providing patients
with copies of medical records using CDs rather than “hard copies.”
Complainant found CDs stacked in her work mailbox and C1 happened to be present at the time.
According to Complainant, she asked C1 why the CDs were there and C1 responded that the
patients wanted hard copies rather than CDs. Complainant attempted to access the patient’s
requests yet could not locate them. Complainant implied that C1 disposed of or hid the patients’
requests to prevent her from establishing that the patients, in fact, wanted CDs rather than hard
copies. The record indicates that there is no written policy at the Agency on this issue, but
Complainant believed it is an informal departmental past practice to provide CDs, if a patient does
not specify whether they want hard copies or a CD.
C1 stated that she was not aware of any prior EEO protected activity on the part of Complainant
at the time of this encounter.
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Claim 4:
C2 was the PACS Manager. He had been requesting assistance in this department for an extended
period due to workload. The Agency created a PACS assistant position yet did not advertise or
fill the position. In response to management’s failure to fill the position, C2 began consistently
inquiring about the matter. After C2 inquired many times, S2 told him that the position could not
be filled until three months later due to the terms of a settlement agreement. C2 contended that S2
told him that it was Complainant’s EEO settlement agreement. S2 contended that she did not tell
C2 who the settlement agreement involved.
Claim 5:
Complainant’s schedule was changed to hours she stated were less favorable. Prior to the change,
all day shift employees, except for Complainant and another female coworker, C3, had rotating
weekend hours. Complainant and C3, however, only worked Saturday day shifts. A group of
coworkers lodged a complaint to upper level management alleging that the rotations should be
made available to everyone. They complained that since Complainant and C3 only worked the
day shift, they were forced to cover a disproportionate amount of night and odd hour shifts. As a
result, S2 instructed C1 to make the rotations more equal. Complainant and C3’s schedules were
changed to require them to rotate weekend shifts equivalent with the rest of the department’s day
shift diagnostic radiological technologists.
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.
Over Complainant’s objections, the AJ assigned to the case granted the Agency’s April 20, 2015,
motion for a decision without a hearing and issued a decision without a hearing on April 11, 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
Among other things, Complainant asserts that she provided sufficient evidence to demonstrate that
the Agency’s actions were not motivated by legitimate concerns, but instead by discrimination and
retaliation. She requests that the Commission issue a decision in her favor and review all of the
facts and evidence related to the case.
The Agency, in pertinent part, argues that its final order should be affirmed.
STANDARD OF REVIEW
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.
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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”).
ANALYSIS AND FINDINGS
AJ’s issuance of a decision without a hearing
We must first determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. 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.
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
administrative judge 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 administrative judge 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.
Disparate Treatment
Claims 2 and 5:
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). She 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. 802 at
n. 13. 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. Specifically,
regarding Complainant’s non-selection in Claim 2, the Agency explained that C1 was selected for
the supervisor position because her interview performance was far superior to Complainant’s.
Likewise, we find that Complainant did not prove, by a preponderance of the evidence, that the
Agency’s reason was a pretext for discrimination based on her protected bases. Instead, the
documentary evidence supports the Agency’s reason. Specifically, regarding the non-selection,
the evidence shows that Complainant and C1 were comparable candidates because C1 met the
position requirements as HR determined that she was eligible to compete for the position; and
Complainant did not demonstrate that their determination was motivated by discriminatory
animus.
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She only offers her own conclusory assertions that C1 should not have been deemed eligible.
Without any evidentiary basis to show that there were inaccuracies in the interview documentation
and transcribed responses to the interview questions, Complainant maintains that the panel’s
assessment of candidates and reasons for recommendation of C1 were a pretext for discrimination.
Yet, the evidence shows that the selection action, including the interview, was conducted in an
objective and equitable manner. We note that employers have broad discretion to set policies and
carry out personnel decisions and should not be second-guessed by a reviewing authority absent
evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259;
Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
Regarding claim 5, Complainant’s Tour of Duty change allegation, the Agency indicated that her
schedule was changed to make the schedule rotations equivalent with the rest of the department’s
day shift diagnostic radiological technologists. We find no evidence of pretext. First, Complainant
failed to identify other similarly situated employees from outside of her protected classes who were
treated more favorably under the same terms and conditions of employment. Complainant also
alleged that some night shift employees are not required to rotate. However, the evidence shows
that those employees are on a different shift. The evidence also indicates that, following the
schedule change in question, all similarly situated day shift employees rotated their shifts.
Complainant also alleged that one individual worked a Sunday daytime schedule and was not
subject to rotating shifts. She conceded, however, that she did not desire a Sunday shift and
indicated it would not have favorable to her. She has therefore failed to prove that she was
subjected to disparate treatment regarding claim 5.
Upon review of the record, we find that the Agency did not subject Complainant to disparate
treatment on the bases of race, age, national origin or reprisal for prior protected EEO activity as
alleged when she was not selected for a supervisor position, and when her tour of duty was
changed.
Harassment
Regarding Complainant’s hostile work environment claim, we find that under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile
work environment must fail with regard to claims 2 and 5. See Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work
environment is precluded by our determination that Complainant failed to establish that any of the
actions taken by the Agency with respect to these claims were motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Claims 1, 3, and 4:
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on their
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
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had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
We find that Complainant did not establish that she was subjected to harassment with respect to
claims 1 and 3, because, assuming these matters took place exactly as alleged, nothing indicates
the existence of discriminatory intent or animus on the part of either S1 or C1. Rather, the evidence
shows that S1 was trying to determine the whereabouts of Complainant during her work hours;
and the incident with C1 was a disagreement over departmental practices. Complainant’s efforts
to refute the evidence only includes speculations and conclusory assertions that do not substantiate
her claims of discriminatory harassment based on her protected classes.2
We also find no evidence to support a claim of harassment on any bases with respect to claim 4.
At the outset, we note that Complainant did not establish that S2, by telling C2 that Complainant’s
settlement caused a delay in filling the assistant position, was motivated by discriminatory animus
based on her race, age, or national origin; and there is no evidence supporting any allegations of
discrimination as it relates to those bases. Moreover, again assuming that S2 told C2 that it was
Complainant’s settlement that caused the delay, there is no evidence that the statement was
intended to, actually did, or was reasonably likely to have a chilling effect on Complainant’s EEO
participation or that it was motivated by retaliatory animus. Rather, all evidence indicates that
Complainant persisted in her ongoing EEO activity without any dissuasion or deterrence; and she
amended her claims to include the incident in Claim 3 and subsequent incidents.
CONCLUSION
The AJ’s issuance of a decision without a hearing was appropriate. Complainant did not establish
that the Agency subjected her to discrimination on the bases of race, age, national origin or reprisal
for prior protected EEO activity as alleged. Therefore, 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 fully adopting and implementing the AJ’s decision that Complainant did not
establish discrimination as alleged.
2 We note that, in addressing an Administrative Judge’s issuance of a decision without a hearing,
a complainant’s opposition must consist of more than mere unsupported allegations or denials and
must be supported by affidavits or other competent evidence setting forth specific facts showing
that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
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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
June 26, 2019
Date
