Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionSep 19, 20140120130339 (E.E.O.C. Sep. 19, 2014) 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 (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. 0120130339 2 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. 0120130339 3 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 0120130339 4 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. 0120130339 5 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: 0120130339 6 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 0120130339 7 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 Copy with citationCopy as parenthetical citation