Afton C.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 6, 2019

2019001035 (E.E.O.C. Mar. 6, 2019)

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

Afton C.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019001035

Agency No. 200J-0550-2017105014

DECISION

On October 27, 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
September 27, 2018, final decision 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. The Commission accepts the appeal
in accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant was a Nurse Practitioner (NP) in the Agency’s
Ambulatory Care Service, of the VA Medical Center in Danville, Illinois. Effective August 17,
2017, Complainant was terminated during her probationary period. Believing that her
termination was based on racial (African-American) discrimination, Complainant filed the
instant formal EEO complaint on December 6, 2017.

After an 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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.

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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In its final decision, the Agency reasoned that management provided legitimate, non-
discriminatory reasons for Complainant’s removal. In her year-end Proficiency Report,
Complainant earned “unsatisfactory” or “low satisfaction” in most categories. These ratings
prompted a review by the Nurse Professional Standards Board (NPSB). The NPSB report
indicated deficiencies by Complainant in the areas of education/career development, quality of
care, research, and collaboration. The Board reviewed charges that Complainant demonstrated a
disregard for patient safety, improper medication management, and a carelessness in
performance of duties. The Board found almost all charges to be sustained and recommended
Complainant’s removal. The VAMC Director concurred with the NPSB’s recommendation.
According to the Agency, Complainant failed to show the Agency’s reasons were pretext.
Instead, she simply presented her own subjective testimony without any supporting evidence.

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

Disparate Treatment

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). He must generally establish a prima facie case by demonstrating that he 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 in this case, however, since 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).
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The instant record reflects that management and colleagues had concerns about Complainant’s
performance, including her documentation, prescribing practices, and accuracy of judgment. In
the “Proficiency Report,” for the period of June 2016 through June 2017, it was noted that
Complainant rarely participated in work groups, she was “reluctantly receptive to constructive
feedback and guidance,” and “consistently demonstrated ineffective communication skills and
unprofessional behavior related to her coworkers”.

In her affidavit, Complainant does not dispute her failing performance. Instead, Complainant
provide excuses for it. When asked why she was terminated, Complainant explained she was
told that she failed to complete documentation in a timely manner. Acknowledging “that was
true,” she argued that her case load was too large. Complainant explained that she could not see
the volume of patients assigned to her in the time allotted, and her attempts to catch up by
working additional time were futile. Similarly, she admitted the “Pact Team” concept was new
to her, and that she did not have the “detailed focus of functioning and implementation of my
responsibilities in the efficacy of the Pact Team.” While Complainant disagrees with the
Agency’s management decisions, she has not shown she was subjected to disparate treatment
based on her race. Complainant does not allege, for example, that she was assigned substantially
more patients that other NP outside of her protected basis. When asked why she believed her
termination was discriminatory, Complainant simply stated “Because I can’t think of any other
reason.”

Based on a review of the instant record, we find that Complainant has failed to establish any
nexus between her termination and race. She has not met her burden in showing that the
Agency’s proffered reasons were pretextual. Therefore, we find that the Agency’s finding of no
discrimination was proper.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision 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

March 6, 2019
Date