EEOC Appeal 2020001498

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Caitlyn H.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001498
Hearing No. 490-2016-00117X
Agency No. 200I-0626-2016101164
DECISION
On August 5, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 28, 2019 final order concerning an equal employment opportunity (EEO) complaint
claiming 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.
BACKGROUND
During the period at issue, Complainant worked as an Advanced Medical Support Assistant, GS-
6 at the Agency’s Nashville Veterans Medical Center, Tennessee Valley Healthcare in Nashville,
Tennessee.
On July 7, 2015, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on race (African-American), sex, (female) 	age (DOB
1961), and in reprisal for prior EEO activity (unspecified) when:
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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a. 	on May 18, 2015, she learned she was not selected for the position of GS-8 Supervisory
Medical Support Assistant, advertised under Vacancy Announcement No. VHA-626-
15-1245054-EBC;
b. 	on November 2, 2015, she learned that the Chief, Business Office denied her request
for Family Medical Leave Act (FMLA) leave, resulting in her being charged with 187
hours of Absence Without Official Leave (AWOL);
c. 	on November 4, 2015, the Supervisory Medical Support Assistant issued Complainant
a lower than anticipated performance evaluation; and
d. 	she was subjected to harassment/a hostile work environment when:
1. 	on November 2, 2015, she learned that the Chief, Business Office denied her
request for FMLA leave, resulting in her being charged with 187 hours of
AWOL;
2. 	on November 4, 2015, the Supervisory Medical Support Assistant issued
Complainant a lower than anticipated performance evaluation;
3. 	on January 14, 2016, the Supervisory Medical Support Assistant asked
Complainant to work in the cardiology executive office to process physical
therapy/occupational therapy consults without providing her the appropriate
training;
4. 	since being assigned to Complainant’s work area, the Supervisory Medical
Support Assistant has harassed her by always speaking to her in a rude and
intimidating tone.
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ).2 	Thereafter, the
Agency submitted a Motion for Decision Without a Hearing. 	Complainant responded to the
motion. On June 19, 2019, the AJ issued a decision by summary judgment in favor of the Agency.
The Agency thereafter issued the instant final order implementing the AJ’s decision.
The instant appeal followed.
2 The record reflects that during the investigation, Complainant withdrew sex and age as bases.

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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).
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 failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.
In finding no discrimination by summary judgment, the AJ found that the record developed during
the investigation established the following undisputed facts.
Regarding claim a, Complainant asserted that on May 18, 2015, she learned she was not selected
for the position of GS-8 Supervisory Medical Support Assistant, advertised under Vacancy
Announcement No. VHA-626-15-1245054-EBC.
Complainant applied for the Supervisory Medical Support Assistant position which was advertised
on USAJobs.com. 	Her applicant was screened and her name was listed on a Certificate of
Eligibles. Complainant was among 18 applicants who met minimum qualification standards and
were granted for a first level interview.
The first level interview was conducted by a panel comprised of three panel members,
Complainant’s interview score ranked her as number 13 out of 18 applicants interviewed. 	The
applicants interviewed who ranked 7 and higher out of 18 advanced to the second interview.
Complainant scored 13 out of 18, and she was not among the highest scored interviewees who
advanced to the second interview.
The Chief, Business Office (Caucasian) was the selecting official during the relevant period. She
noted that the panel of three Agency officials conducted the first interviews. Then, she and the
Assistant Chief, Business Office conducted the second interviews.

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Following the second interviews, she selected four applicants for the subject four positions based
on their interview scores and work experience. 	The Chief explained that Complainant did not
make the second interview due to her low score. The record reflects that one of the four selectees
was the Supervisory Medical Support Assistant, also Complainant’s first-level supervisor.
The Budget Analyst (Caucasian) was the Lead panel member on the interview panel along with
two other members who scored the applicants and turned over their information to the Human
Resources (HR) liaison. 	He stated that ratings were included on the interview package “which
rates each applicant on a series of performance based interviews from 1 to 5.” The Lead stated
that while he did not have any authority to refer the applicants for the second interview, he and the
other two panel members simply interviewed the first interviews and ranked the applicants.
The Chief of Ophthalmology was part of the three-member panel (Panelist 1) for the first
interviews. She noted that the Lead gave her and the other member questions and matrix and “as
each question was asked we filled int heir response and rated them on that scale.” 	Panelist 1
recalled Complainant “fell low in the ratings because we interviewed a lot of people and I
remember there were several positions open and there were 4 or 5 candidates that scored very well
and well above the rest of the field then there was the bulked that fell in the middle half of the
scale. There was a big gap between the two and for those that I felt were qualified. Then, there
were two or three that fell below the scale altogether and scored really low and I recall that the
Complainant scored really low. I remember this because there was such a difference in her scores
and the others that had applied. She was not the only one, there were two or three that also scored
low.”
Regarding claim b, Complainant alleged that on November 2, 2015, she learned that the Chief,
Business Office denied her request for FMLA leave, resulting in her being charged with 187 hours
of AWOL. 	The record reflects that Complainant clarified that she was not charged AWOL but
instead was charged with LWOP under her request for FMLA, rather than advanced sick leave she
had requested.
The Chief explained that Complainant’s request for FMLA was indeed approved. The Chief noted,
however, that Complainant requested advanced sick leave, which was not approved. The Chief
further stated that Complainant’s timecard was posted as LWOP pending FMLA approval “since
the required paperwork had not been completed in its entirety prior to her requiring treatment of
her medical condition.” 	The Chief further stated that she did not recommend approval of
Complainant’s sick leave “due to the excessive amount of leave Complainant had taken in the past.
The person who disapproved the request for advanced sick leave was [former Associate Director].”
Regarding claim c, the Support Assistant asked Complainant to work in the cardiology executive
officer to process physical therapy/occupational therapy consults without providing her the
appropriate training.

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Regarding claim d, Complainant claimed that she was subjected to harassment/a hostile work
environment (encompassing a reiteration of some matters discussed above) when: on November
2, 2015, she learned that the Chief, Business Office decided her request for FMLA leave, resulting
in her being charged with 187 hours of AWOL; on November 4, 2015, the Supervisory Medical
Support Assistant issued Complainant a lower than anticipated performance evaluation; on January
14, 2016, the Supervisory Medical Support Assistant asked Complainant to work in the cardiology
executive officer to process physical therapy/occupational therapy consults without providing her
the appropriate training; and the Supervisory Medical Support Assistant has harassed her by
always speaking to her in a rude and intimidating tone.
The Supervisory Medical Support Assistant, also Complainant’s supervisor, stated that she did not
subject Complainant to harassment. She acknowledged giving Complainant a “Fully Successful”
on her performance evaluation. 	The supervisor stated that she reviewed each element with
Complainant and “what is expected as far as percentage ratings, because it’s based off of
percentages. 	And then, I also went over with the employee some things that would help her
improve her ratings. One of the things I consider very highly when I am doing a performance
appraisal is customer service. So, I talked to the employee about how important customer service
is…so those are some of the things I had talked with her about that could help her with her ratings
at the end of the year.”
The supervisor also noted that she told Complainant that while self-appraisals are not mandatory,
she recommended Complainant to do a self-appraisal, so she could learn more about Complainant.
She stated, however, Complainant did not provide a self-appraisal and “she refused to sign the
mid-year appraisal, saying that she didn’t agree with the elements that were provided. 	So she
requested a union rep to review her mid-year appraisal elements.” She stated that she never heard
from Complainant or her union representative concerning the mid-year appraisal elements.
The supervisor further stated that “each day basically [Complainant] just has no work assigned to
her. She sits there and if a patient checks in, the five to ten patients that check for that clinic, she
does their ICB [Insurance Capture Buffer]. And that’s pretty much it. She’ll schedule their follow-
up visits for an entire year once they’re checking out at her station.” The supervisor stated that
she encouraged Complainant “to increase her knowledge base, because she doesn’t really work
with RTC’s [Return to Clinic] that much, clinic consults, and because we had such a backlog, that
I could use her help with scheduling and assisting other clinics outside of hers.”
We now address Complainant’s allegation that on January 14, 2016, the supervisor asked
Complainant to work in the cardiology executive officer to process physical therapy/occupational
therapy consults without providing her the appropriate training. 	The supervisor acknowledged
asking Complainant to help with the service, and with “the backlog within the service, was to assist
with consults and RTCs, which again, is part of your daily function, but then granted in her clinic
she doesn’t have to process consults often…I pulled her out of her clinic that she was working in
because they were waxing the floors and her clinic was closed. She could not work in her work
area.”

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The supervisor stated that she placed Complainant in a vacant office in the cardiology department
“because I wanted one-on-one training with her, so I put her with another counterpart, another
advanced medical support assistant that had knowledge in the actual consults that she was going
to be working on…I think peers work well with peers versus a direct supervisor that she refused
to meet with. I figured that would be better to meet with her to train because she refused any of
my training one on one.”
Regarding Complainant’s allegation that the supervisor has harassed her by always speaking to
her in a rude and intimidating tone, the supervisor asserted that the only communication she has
with Complainant “is through email. She will not come down to my office without a union rep.
[and] she refuses to meet with me - period. So. I have no verbal interaction with this employee at
all. It is strictly through email.”
In sum, after careful consideration of all Complainant’s allegations and the evidence of record,
there is adequate support the AJ’s determination that the responsible management officials clearly
articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare
assertions, Complainant has simply provided no evidence to support her claim that her treatment
was the result of her race or prior protected activity. A case of discriminatory hostile work
environment is precluded based on our findings that Complainant failed to establish that any of
the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal
Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.
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.

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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.
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.

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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
September 14, 2020
Date