Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 11, 2015

01-2013-2783-0500 (E.E.O.C. Sep. 11, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120132783

Hearing No. 440-2013-00047X

Agency No. 200J-0578-2012101673

DECISION

On July 22, 2013, Complainant filed an appeal from the Agency’s July 4, 2013 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Chief Nurse at the VA Hospital in Hines, Illinois. On March 12,
2012, she filed an EEO complaint in which she alleged that the Deputy Director for Patient
Care Services, her immediate supervisor (S1), and the Director for Patient Care Services, her
second-level supervisor (S2) harassed her because of her race (Asian) and previous EEO
activity. At the conclusion of the ensuing investigation, the Agency provided Complainant
with a copy of the investigative report (IR) and notice of her right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
timely requested a hearing but subsequently withdrew her request. Consequently, the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

Initially, Complainant alleged that on November 25, 2011, S1 and S2 had given her a
performance appraisal rating of “excellent” rather than outstanding, which resulted in her
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receiving a bonus of $1,000 rather than $2,500. IR 86-87, 89. S1 averred that Complainant
did not receive a rating of “outstanding” because she needed to improve her communication
and interpersonal skills. IR 13, 143. S2 averred that the other Chief Nurse received a higher
bonus than Complainant because her performance had been outstanding. IR 150.

Next, Complainant alleged that throughout January of 2012, S2 berated her by sending her
abusive emails, deliberately misspelling her name, belittling her in the presence of colleagues
and subordinates, and undercutting her supervisory authority. IR 91, 94, 96. S2 responded
that she had criticized Complainant via email, for her failure to verify certain information
before reporting it as factual, that she had mistaken the fourth letter in Complainant’s first
name to be an “I” rather than an “E” and had corrected the error after being so informed by
Complainant, that she had criticized Complainant at a senior staff meeting for recommending
the termination of a Licensed Nurse Practitioner (LPN) based on inaccurate information, and
that she advised Complainant’s subordinates to keep her and S1 in the loop about significant
occurrences in the clinics in addition to notifying Complainant. IR 139, 151-54.

Third, Complainant alleged that on January 26, 2012, S1 did not approve her request for
previously earned compensatory time. IR 98-99. Both S1 and S2 responded that Complainant
never submitted a request for compensatory time on that date. IR 139-40, 155. Complainant’s
time and attendance record for January 26, 2012, does not denote a claim for compensatory
time. IR 197.

Finally, Complainant alleged that between January and May of 2012, she was improperly and
unfairly disciplined by S1 and S2. IR 100-106, 136. S1 and S2 gave Complainant two letters
of inquiry in connection with her interactions with the LPN referenced above. The first
inquiry had to do with Complainant’s failure to document performance ratings of unsatisfactory
she had given the LPN while the second concerned her response to a crisis in which the LPN
had expressed thoughts of suicide. As a result of those inquiries, Complainant was issued a
notice of proposed reprimand, which was mitigated to an admonishment. IR 140-41, 157-58,
179, 230-32.

ANALYSIS AND FINDINGS

To prevail on her claim of discriminatory harassment, Complainant would have to prove by a
preponderance of the evidence, that because of her race or previous EEO activity, S1 or S2
subjected her to conduct so severe or pervasive that a reasonable person in Complainant’s
position would have considered it hostile or abusive. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14,
1998). Only if Complainant satisfies his burden of proof with respect to both of those
elements, motive and hostility, will the question of Agency liability present itself.

It is therefore Complainant’s burden to establish the existence of an unlawful motivation on the
part of S1 or S2 by a preponderance of the evidence, and more is required to meet that burden
than merely expressing one’s belief. Such evidence can take the form of discriminatory
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statements or past personal treatment, comparative or statistical data showing significant
discrepancies, unequal application of Agency policy, deviations from standard procedures
without explanation or justification, or inadequately explained inconsistencies in the evidentiary
record.

In this case, the affidavit testimony provided by S1 is consistent with that provided by S2
regarding Complainant’s performance appraisal, her interactions and communications with S2,
her alleged request for compensatory time approval, and the disciplinary action to which she
was subjected. The statements of both officials have been corroborated by contemporaneously
prepared memoranda, particularly with regard to the inquiries that lead to Complainant
receiving an admonishment for her handling of the two situations involving the LPN. While
Complainant maintains that the actions taken by S1 and S2 were motivated by unlawful
considerations of her race and previous EEO activity, she has not presented any sworn
statements from other witnesses or documents that contradict the explanations provided by
those officials or which call their veracity into question. Consequently, we find, as did the
Agency, that Complainant failed to satisfy her burden of proof as to the existence of an
unlawful motivation on the part of S1 or S2 with respect to her claim of discriminatory
harassment.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, 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
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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 (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 Complainants 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 11, 2015
Date