Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 11, 201501-2013-2783-0500 (E.E.O.C. Sep. 11, 2015) Copy Citation 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 0120132783 2 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 0120132783 3 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 0120132783 4 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 Copy with citationCopy as parenthetical citation