0120112710
06-18-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112710
Agency No. 200P-0654-2010102081
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 6, 2011, final decision 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 Agency's final agency decision (FAD) which found no discrimination is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Worker, GS-09 at the Agency's VA Medical Center in Reno, Nevada. Complainant was hired, effective August 16. 2009, as a Social Worker, GS-0185-09, under an Excepted Appointment pending licensure. Complainant was considered a temporary "probationary" employee for up to three years. Complainant did not have a state license at the time that she was hired because she was from Indiana and there a therapist was not required to have a license. Complainant asserts that management was aware that she did not have a license when she was hired because she had just graduated. Complainant was diagnosed with Dyslexia and ADHD in August 2008. Complainant maintained that her impairments limited her reading and writing ability, in that, she read slower than the average person and made grammatical and spelling errors. Complainant did not utilize medication for the treatment of her ADHD. During orientation, Complainant submitted a standard form where she self identified as having a disability.
As Complainant was not licensed, DM, a Licensed Social Worker was assigned to supervise her clinical notes and sessions. While not in her supervisory chain, DM reviewed Complainant's work each day as a cosigner. He also sat in on approximately ten of her sessions and provided feedback. DM proofread Complainant's patient charting notes after she conducted her sessions with veterans and identified problems for improvement. Complainant considered DM an asset to help her achieve her goals as a Social Worker.
Along with Complainant, DM mentored several other Social Worker interns and made the same reviews that he did with Complainant's work although she believed that he took a little longer reviewing her materials.
In January 2010, Complainant was called into the office by the Lead Social Worker and told that she needed to get a license and that she should have had one upon hiring. A few days later, DM repeated the instruction that Complainant needed to get her license. On February 5, 2010, Complainant was again called into the office and this time she was told that she was being terminated from her position because her patient charting was below standards. The items reviewed by DM were used as the bases of the termination. Complainant noted that DM had also indicated that there were deficiencies in other social worker interns but they were not terminated. Complainant indicated that she had told DM three weeks earlier that she had dyslexia and ADHD.
Further, Complainant maintained that in addition to the Agency not providing her a reasonable accommodation, she believed that her race could have been a factor because during a meeting, DM told a group that they wanted to stay off the "black - list." Immediately, thereafter DM stopped the meeting and apologized to Complainant for using that term of art. Complainant maintained that she was embarrassed by his actions. Complainant also noted that she was the only African American social worker out of the six social workers that were there. Believing that she was treated more harshly than the other social worker interns she filed the instant complaint.
On April 15, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American) and disability (Dyslexia and Attention Deficit Disorder (ADHD) when:
A. on February 19, 2010, the Agency denied her a reasonable accommodation when it failed to monitor and assist her with her note writing, including a patient charting incident on February 5, 2010.
B. on February 19, 2010, when she was notified that she was being terminated from her probationary position.
C. on the bases of race (Black) and disability, Complainant was subjected to hostile work environment harassment as evidenced by the following events:
1. On September 1, 2009, the supervisor made a derogatory comment in a group therapy meeting when he stated: "You know black lists are things you need to stay away from," and the supervisor then offended and embarrassed Complainant when he stopped the session and openly apologized to the complainant;
2. On February 19, 2010, the Agency denied Complainant a reasonable accommodation when they failed to monitor and assist her with her note writing, including a patient charting incident of Februarys, 2010; and,
3. On February 19, 2010, Complainant was notified that she was being terminated from her probationary position.
Following an investigation by the Agency, Complainant requested a FAD. The FAD found that Complainant failed to prove discrimination. The Agency indicated that even if Complainant established a prima facie case of discrimination as to all bases, the Agency had articulated legitimate, nondiscriminatory reasons for its actions. With regard to issue A,1 the Agency maintained that it was not aware that Complainant needed a reasonable accommodation as it did not have access to the form that she filled out in orientation. Notwithstanding, management maintained that during orientation Complainant was told about the process for requesting an accommodation but she never requested one, nor was she perceived as needing one. While she perceived DM as an asset or an accommodation, the record showed that he worked and provided the same services to the other interns.
Further, with regard to issue B, Complainant's termination, management maintained that she was terminated due to the quality of her work and not her race or disability. Management explained that the issue regarding Complainant's performance was not just about her inability to write adequate chart notes, but also had to do with her lack of progress in performing consultations, assessments, treatment and therapy and conveying the results via written chart notes. Also, it was noted that Complainant told a manager in October 2009 that she was studying for her master level social work licensing exam. However, when asked if she had taken the exam, she replied that she had not taken the exam and was not sure she would take the exam. The Agency maintained that a license was required for Complainant to continue practicing in Nevada.
Finally, with regard to Complainant's assertion that she was subjected to a hostile work environment, the Agency argued that the incidents involved were work related. And, with regard to DM using the term "black-listed," the evidence showed that he apologized immediately and indicated that he did not mean to offend. The Agency maintained that it did not deny Complainant a reasonable accommodation as she never requested one. Further, she was terminated due to work issues. The Agency indicated that the issues involved in this case were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
Complainant did not submit a brief on appeal.
The Agency however indicated that the record shows that DM, the person who monitored Complainant's notes and patient charts did the same thing for all social work interns and not just Complainant. The record shows that DM made repeated attempts to help Complainant improve her note talking and patient charting by offering her suggestions as to how to improve those skills. Despite his efforts however, Complainant continued to make the same errors over and over again. Complainant also experienced other problems related to her lack of progress in performing consultations, assessments, treatments and therapy as well as conveying the results in written chart notes. Furthermore, although not given as the primary reason for Complainant's termination, Complainant led Agency officials to believe that, at the time she was hired, that she possessed or soon would possess the license required by statute and regulation to operate as a social worker in the State of Nevada. Management subsequently learned however that Complainant did not in fact possess such a license. This lack of the required license was also a factor in the decision to terminate Complainant.
With respect to Complainant's claim of failure to accommodate, Complainant acknowledged that she did not tell her supervisors until a few weeks before her termination that she had any kind of a disability (ADHD) and that she never requested a reasonable accommodation from management. In fact, when she finally did tell DM that she had ADHD, she also told him that she preferred to handle her ADHD on her own and, even then, did not request an accommodation. Consequently, since management was unaware that Complainant had a disability until shortly before her termination, she could not have been discriminated against. As she had never indicated that she needed a reasonable accommodation, even though management was monitoring and reviewing her work product.
Finally, as to the claim of hostile work environment based on race as it relates to the comment made by DM in a meeting and his subsequent apology, it is the Agency's position that the supervisor's actions should be applauded and not condemned. Although the "black-list" comment was clearly not intended to be a racial comment, DM was sensitive enough as to how the comment could be perceived by Complainant to offer her an immediate apology if the comment offended her. The Agency requests that its FAD finding no discrimination be affirmed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was fully cited above and Complainant failed to show that the reasons were pretext for discrimination. We find that the record shows that Complainant was terminated during her probationary period.2 Further, we find that the record shows that Complainant never requested an accommodation from management. Additionally, we find that the Agency articulated the reason why Complainant was terminated from her position and this included her work performance and her lack of a license. To show pretext Complainant argued that other interns made mistakes and they were not fired. The record shows however, that the interns were not similarly situated as they had licenses and Complainant did not. We find that other than Complainant's conclusory statements, she provided no evidence which suggests that discriminatory animus was considered with regard to the actions in this case.
Finally, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. 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 were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_6/18/14_________________
Date
1 Complainant indicated during the investigation that she did not think race was involved in this claim.
2 The Commission has long held that where a Complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Coe v. Department of Homeland Security, EEOC Appeal No. 0120091442 (October 7, 2011); Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
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0120112710
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013