Zetta B.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Aug 29, 2016

0120142570 (E.E.O.C. Aug. 29, 2016)

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

Zetta B.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120142570

Hearing No. 460-2014-00003X

Agency No. 200305802010104239

DECISION

On July 14, 2014, Complainant filed an appeal from the Agency’s final action 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. For the following reasons, the Commission AFFIRMS the Agency’s final
action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse
at the Agency’s Michael E. DeBakey Medical Center in Houston, Texas. On December 16,
2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her
in reprisal for prior protected EEO activity when:

1. the Agency failed to take corrective action after Complainant reported a shortfall of
$9993.00 in her annual pay in July of 2010;
2. the Agency issued an admonishment letter to Complainant;

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. the Agency denied her 48 hours of leave without pay and charged her as AWOL
[absent without leave] for July 23-25, 2010 and July 27, 2010;
4. the Agency docked her annual leave account balance by eight hours and her sick
leave balance by at least four hours; and
5. on October 16-17, 2010 , the Agency charged her 24 hours AWOL.

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.
After an AJ was assigned to the matter, Complainant sought to amend the complaint to add the
following claims, alleging discrimination on the bases of race and in reprisal for prior
protected EEO activity when:

6. on November 29, 2012, Complainant was assaulted and insulted by a co-worker
(CW1);
7. Complainant was subjected to disciplinary proceedings as a result of the November
29, 2012 incident; and
8. CW1 communicated with her in violation of the Agency-imposed no contact order.

The AJ allowed the amendment but remanded the amended claims for investigation. Following
the supplemental investigation, the matter was reassigned to an AJ. The AJ granted the
Agency’s motion for a decision without a hearing with respect to the claims in the original
complaint but held a hearing on the claims added by amendment. The AJ issued decisions
resolving those claims on May 27 and 29, 2014, respectively. In both decisions, the AJ found
that Complainant failed to prove that she had been discriminated against. The Agency failed to
issue a final order within 40 days after receiving the Administrative Judge's decisions of May
27 and 29, 2014. Therefore, pursuant to 29 C.F.R. § 1614.109(i), the Administrative Judge's
decisions together constitute the final action of the Agency. From that action, Complainant
brings the instant appeal.

ANALYSIS AND FINDINGS

Claims 1-5 (Reprisal for Prior Protected EEO Activity)

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
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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. For the reasons set
forth below, we find that these claims do not present any genuine issue of material fact
requiring a hearing to be resolved.

Complainant can establish a prima facie case of reprisal by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security
Administration, EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, Complainant may establish a prima
facie case of reprisal by showing that: 1) she engaged in prior protected activity; 2) the
responsible agency officials were aware of the protected activity; 3) she subsequently was
subjected to adverse treatment; and, 4) the adverse action followed the protected activity within
such a period of time that a retaliatory motive may be inferred. Murphy v. United States Postal
Service, EEOC Appeal No. 01965398 (October 16, 1998)

Here, we find support for the AJ's determination that there was no evidence that any
responsible management officials had knowledge of Complainant's prior protected activity.
Each of the management officials in question denied having any such knowledge. There is
nothing about the nature of work performed by these managers that would give them access to
information about Complainant’s prior EEO activity. The two supervisors involved in the
admonishment letter to Complainant did not supervise Complainant at the time of her earlier
EEO activity. Complainant adduced no competent evidence that any of the responsible
managers were aware of her prior EEO activity.

Claims 6 and 8 (Coworker Hostile Work Environment)

On November 29, 2012, Complainant was involved in an altercation with a coworker, CW1,
resulting from an argument between them over how best to treat a patient. In the process,
Complaint alleges, CW1 assaulted and insulted her. As a result of the incident, the Agency
ordered Complainant and CW1 to stay away from each other. CW1 later approached
Complainant in violation of the stay away order.

It is well-settled that harassment based on an individual's statutorily protected bases is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to
establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily
protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome
conduct related to her membership in those classes or her prior EEO activity; (3) the
harassment complained of was based on those classes or that activity; (4) the harassment had
the purpose or effect of unreasonably interfering with her work performance 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).

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Where, as here, the alleged harassment is perpetrated by a coworker, liability is imputed to the
Agency only if management knew or should have known of the misconduct and failed to take
immediate and appropriate corrective action. See Owens v. Dep't of Transportation, EEOC
Request No. 05940824 (Sept 5, 1996). The AJ found that, although the Agency was aware
that an altercation had occurred, there was no evidence that Complainant ever informed the
Agency about CW1’s race-based harassing and insulting behavior. AJ Decision at 12.
Therefore, as management was unable to take any kind of immediate and corrective action to
resolve the situation, the Agency cannot be held liable for the alleged harassment.

Claim 7 (Subjected to Disciplinary Proceedings)

To prevail in a disparate treatment claim such as this, 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 generally 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). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

Here the Agency explains that Complainant was subjected to a stay away order because she
had been involved in an altercation with a coworker, who was also given a stay away order.
During a fact-finding proceeding, it was determined that Complainant had engaged in
disruptive behavior. The stay away order was issued as a result. This is a legitimate,
nondiscriminatory reason for the Agency’s actions. The AJ correctly determined that
Complainant had failed to show the Agency’s reasons for its action to be a pretext designed to
conceal discriminatory animus.

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 action.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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

August 29, 2016
Date