Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 19, 2014

0120130339 (E.E.O.C. Sep. 19, 2014)

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
(Veterans Health Administration),
Agency.

Appeal No. 0120130339

Hearing No. 560-2011-00171X

Agency No. 200306572010102113

DECISION
Complainant filed an appeal from the Agency’s November 9, 2012 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical
Nurse at the Agency’s John Cochran St. Louis Veterans Administration Medical Center in St.
Louis, Missouri. On September 22, 2010, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (Caucasian), sex (female), and in
reprisal1

for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
when:
A. On February 9, 2010, Complainant learned that her supervisor, S1, did not
submit her educational documents for tuition reimbursement.

B. On February 15, 2010, S1 did not submit Complainant's application for
promotion to the Nurse Professional Standards Board.

1 Claims (C) and (D) are alleged on all three bases of discrimination. Claims (A) and (B) are
alleged on the bases of race and sex only.
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C. On September 10, 2010, S1 gave Complainant a written reprimand.

D. On November 3, 2010, Complainant received a fully successful performance
evaluation rating, which she interpreted as a rating of "less than adequate.”

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing. By order dated July 23, 2012,
the AJ dismissed Complainant’s complaint from the hearing process pursuant to Complainant’s
request. Consequently, the Agency issued a Final Decision pursuant to 29 C.F.R.
§ 1614.110(b).

In its Decision, the Agency found that Complainant did not present evidence that more likely
than not she was subjected to discrimination as alleged. Specifically, the Agency found that
with regard to claim (A), Complainant’s supervisor, S1, explained that he did not submit
Complainant’s forms for tuition reimbursement because they were incomplete. S1 stated that
he returned the training funding forms to Complainant and Complainant did not resubmit the
completed forms to him.

Regarding claim (B), the Agency found that S1 explained that applications for promotion of
employees at the GS-5 level are not reviewed by the Nurse Professional Standards Board.
Instead, S1 explained that employees at Complainant’s grade level are recommended for
promotion to the next level by the chain of command. S1 stated that in September 2009, S1
forwarded promotion applications for Complainant and three other employees in Complainant’s
position, none of whom received promotions that year. S1 further explained that Complainant
did not receive a promotion because her former supervisors would not provide input for her
promotion and S1 did not recommend Complainant for promotion because at that time, he had
worked with Complainant for only four months. The Agency further found that S1 submitted
Complainant’s application again in 2010, and she was not promoted because S1 believed that
Complainant lacked consistency in her performance and needed to be more proactive in the
area of patient care.

Regarding claim (C), the Agency found that S2 (Complainant’s second level supervisor) issued
Complainant a proposed reprimand and later a decision imposing the proposed reprimand,
based upon three charges. Specifically, Complainant was charged with unbecoming conduct,
failure to follow leave request procedures, and for being absent without official leave
(AWOL). The Agency noted that Complainant was accused of using inappropriate language in
the presence of a patient. Complainant was also charged with leaving work without approved
leave and charged with AWOL when she requested more hours of sick leave than she had
available. The Agency found that Complainant was counseled concerning her conduct and her
use of sick leave prior to the imposition of discipline.

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Regarding claim (D), the Agency found that Complainant received a fully successful rating for
the performance year beginning on October 1, 2009, and ending on September 30, 2010. The
Agency found that S1’s reasons for rating Complainant as he did included concerns that
Complainant could not provide care to more than five patients. The Agency noted that
nevertheless, Complainant received a fully successful performance rating and received a
promotion from GS-5 to GS-6 in January 2011.

The Agency found that Complainant did not present any evidence other than her own
conclusory statements to show that the Agency’s legitimate, nondiscriminatory reasons for its
actions in the complaint were a pretext to mask discrimination. Accordingly, the Agency
found that Complainant did not show that she was subjected her to discrimination as alleged.

On appeal, Complainant states that the Agency’s Final Decision was issued more than 60 days
after the AJ dismissed Complainant’s complaint from the hearing process pursuant to
Complainant’s request. Complainant requests that the Agency’s Final Decision be struck from
the record because it is untimely. Complainant further notes that the investigation conducted
by the Agency was inadequate.

Complainant explains that the statement for which she was charged with unbecoming conduct
was in response to the statement of another employee during a discussion of the 10-minute
recovery time permitted for patients following cardiac catheterization procedures.
Complainant states that employee stated that “only one” patient had died. Complainant
responded by stating that was one “fucking” patient too many, and that things needed to
change. Complainant points out that the other employee was not disciplined for the remark
that the death was “only one.” Complainant notes that other employees under S1’s supervision
have used similar language to the language she used in the workplace without receiving
discipline, whereas Complainant was singled out for the isolated comment.

ANALYSIS AND FINDINGS
We decline to strike the Agency’s Final Decision and deem Complainant’s appeal to have been
timely filed though it preceded the Decision. We find no dispute that Complainant withdrew
her request for a hearing and that the AJ granted Complainant’s request, whereupon
Complainant’s complaint was dismissed from the hearing process. We note that the hearing
process is intended to be an extension of the investigative process, designed to ensure that the
parties have “a fair and reasonable opportunity to explain and supplement the record and, in
appropriate instances, to examine and cross-examine witnesses.” See EEOC MD-110, Chapter
7 § I; see also

29 C.F.R. § 1614.109(e). Accordingly, we consider the entire record on appeal
in our review of the evidence, including the evidence gathered during discovery while pending
before the AJ and subsequently submitted by Complainant with her brief on appeal.
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
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C.F.R. Part 1614

, at Chapter 9, § VI.A. (November 9, 1999) (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”).
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).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force

, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).
We find the evidence supports the Agency’s Final Decision and we find the investigation
adequate. Regarding claim (A), we note that in his deposition, S1 states that he returned the
identified tuition reimbursement forms to Complainant. Neither S1 nor Complainant produced
a copy of the forms Complainant claimed to have submitted for reimbursement for her
educational expenses. We find that Complainant did not present evidence that more likely than
not S1 improperly withheld her forms from submission to the Agency’s human resources office
for processing or that any action in claim (A) by S1 was motivated by discrimination.

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With respect to claim (B), we find no evidence that S1’s explanation regarding the promotion
process for employees in Complainant’s position at the GS-5 level is untrue or unworthy of
belief. We find no dispute in the evidence that at the time S1 considered Complainant’s
application for promotion in September 2009, that S1 had not supervised Complainant’s work
for very long. We find reasonable S1’s explanation that he could not recommend Complainant
for promotion at that time based upon his supervision of her work. We find that Complainant
did not present evidence that Complainant’s prior supervisors recommended Complainant for
promotion at that time.

Regarding claim (C), we find, as did the Agency that Complainant received a written
reprimand from S2, which contained three charges in support of the corrective discipline. We
find no dispute regarding the comment described in the notice. Complainant concedes that she
made the statement attributed to her. We find that the remark Complainant describes as
precipitating her comment did not include the obscenity that Complainant’s remark did. We
further find no dispute that Complainant requested 12 hours of sick leave on the date identified
in the letter of discipline. When the Agency discovered that Complainant did not have that
many hours of accrued sick leave, the evidence indicates that Complainant was approved only
for the amount of sick leave she had available. We find no evidence that Complainant’s race,
sex, or EEO activity played any role in the Agency’s decision to impose discipline under the
circumstances described in the notice. We find that Complainant did not present evidence that
more likely than not she was subjected to discrimination as alleged in claim (C).

Regarding claim (D), we find, as did the Agency, that Complainant received a “fully
successful” performance appraisal rating for the identified year. We find that Complainant
did not present objective evidence that her performance merited a higher rating or that S1’s
assessment was motivated by her race, sex, or was the product of reprisal for Complainant’s
prior protected EEO activity. We consider, as did the Agency, that Complainant was
ultimately promoted to GS-6 grade level in January 2011.

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

(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:

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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
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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

Date
September 19, 2014