Marica H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 27, 2019

2019000163 (E.E.O.C. Mar. 27, 2019)

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

Marica H.,1
Complainant,

v.

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

Appeal No. 2019000163

Agency No. 2004-0637-2016103589

DECISION

On October 10, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 20, 2018 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Dental Hygienist at the Agency’s VA
Medical Center in Asheville, North Carolina.

On August 23, 2016, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her based on disability, age (over 40), and in reprisal for prior
EEO activity when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2019000163

2
1. on May 25, 2016, the Chief of Staff suspended her for five calendar days, effective
June 6, 2016, for Abandoning a Patient During Treatment, Failure to Safeguard VA
Sensitive Information, and Unauthorized Absence; and

2. on January 14, 2017, the Medical Center Director removed her from employment for
Failure to Obtain Radiographs, Unauthorized Absence, and Failure to Follow Leave
Procedures.2

Complainant identified her disabilities as follows: anxiety, depression, panic attack disorder,
osteoarthritis and carpel tunnel syndrome.

After the investigation of the formal complaint, the Agency provided Complainant with a copy
of the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ).3 Complainant initially requested a hearing. The AJ, however, issued
a document entitled “Order Imposing Sanctions and Dismissing Hearing Request” dated January
26, 2018, dismissing Complainant’s hearing request, finding that Complainant had not complied
with the AJ’s orders.

The record reflects that on November 2, 2017, the AJ issued a Notice of Intent to Issue Sanction
and Order to Show Cause (hereinafter referred as “Notice”) requiring a written response to the
reasons for Complainant’s failure to be available for the Initial Conference as ordered. The
Notice described the possible sanctions and permitted the parties until November 20, 2017, to
provide a response. The Notice was mailed to Complainant’s address of record and to her
representative. Neither Notice copy had been returned as undeliverable. The AJ noted that on
October 12, 2017, Complainant’s representative no longer represented Complainant. The AJ also
sent the Notice to the Agency through the Federal Sector EEO Portal upload.

The AJ noted that on November 3, 2017, the Agency responded stating that Complainant’s
representative contacted the Agency on or around October 11, 2017, stating that Complainant
was not proceeding with this matter. On November 2, 2017, an Agency representative spoke
with Complainant and advised her to contact the AJ. Complainant failed to respond to the
Notice or contact the AJ. Consequently, the Agency issued the instant final decision on
September 20, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant, on appeal, argues that the Agency erred finding no
discrimination. Complainant further argues that the AJ improperly dismissed her hearing request
as a sanction for failure to comply with the AJ’s orders. Complainant states that sometime in
October 2017, her union representative notified her that he would no longer represent her.

2 The record reflects that claim 2 was later amended to the instant formal complaint.

3 The record reflects that during the investigation, Complainant did not submit an affidavit.

2019000163

3
Complainant states that according to the union representative, he informed the Agency and AJ
that he was no longer representing her.

Complainant states that she never told the union representative that “she did not want to proceed
with the EEOC hearing proceedings.” Complainant also notes that the AJ “made no attempt to
call or reach out to Complainant to confirm, knowing full well that Complainant was no longer
represented by the union representative.”

Ina addition, Complainant claims that during the relevant period she moved from North Carolina
to Kentucky and “her mails got lost as result.” Complainant states that she suffered “from the
union representative’s unethical conduct of abandoning his representative role…AJ erred when
she assumed that both parties failed to show for the teleconference in Oct. 2017, when in fact
Complainant did call in using the conference number only to find out that no one answered.”
Complainant claimed she never received the AJ’s Notice because she had moved out of state.

ANALYSIS AND FINDINGS

As a threshold matter, the Commission finds that there is sufficient evidence of record
supporting a determination that AJ properly dismissed Complainant’s hearing request on
Complainant’s failure to respond to the AJ’s November 2, 2017 Notice. We now turn to the
merits of the case.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). During the investigation, Complainant
identified her disabilities as anxiety, depression, panic attack disorder, osteoarthritis and carpal
tunnel syndrome. However, she indicated that she was able to perform the functions of her
position without accommodation. For purposes of this analysis, we assume, without so finding,
that Complainant was a qualified individual with a disability. With regard to her reprisal claim,
Complainant stated that she had participated in EEO counseling in September – November 2015
concerning her immediate supervisor, the Assistant Chief, Dental Services, but never filed a
formal complaint.

Once a prima facie case is established, the burden shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. See Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears
the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509
U.S. 502 (1993).

2019000163

4
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

In claim 1, Complainant asserted that on May 25, 2016, the Chief of Staff suspended her for five
calendar days, effective June 6, 2016, for Abandoning a Patient During Treatment, Failure to
Safeguard VA Sensitive Information, and Unauthorized Absence.

The Chief, Services (disability, over 40, prior protected activity) stated that on March 16, 2016,
he proposed that Complainant be suspended for 5 days for Abandoning a Patient during
Treatment, Failure to Safeguard VA Sensitive Information, and Unauthorized Absence.
Specifically, the Chief stated that on February 19, 2016, Complainant left her duty station and
left her patient unattended during treatment, which required assistance from another employee.
The Chief stated that at the time Complainant left her duty station, she did not lock her computer
or log out.

Further, the Chief stated that on that same day, February 19, 2016, Complainant was scheduled
to work from 7:30 a.m. to 2:00 p.m. but that she left her duty station and the premises at 1:00
p.m., prior to her scheduled departure, and requested sick leave beginning at 2:00 p.m.
Complainant was notified that she would be charged as Absent Without Leave (AWOL) until she
provided medical documentation. Complainant did not provide requested medical
documentation, and consequently, she was charged with Unauthorized Absence.

The Chief stated that he took Complainant’s prior disciplinary action into consideration.
Specifically, the Chief noted that on December 1, 2015 Complainant received a reprimand for
Absence During your Scheduled Patient Appointment, Failure to Follow Instructions, and
Unauthorized Tardiness.

The Chief of Staff (no disability, over 40, prior protected activity) was the deciding official
concerning the proposed 5-day suspension. The Chief of Staff stated that after a thorough review
of the record, he concluded with the Chief’s proposal to suspend Complainant for 5 days.
Specifically, the Chief of Staff stated that he concluded that the penalty of a 5-day suspension “is
appropriate, considering the offenses and [Complainant’s] past disciplinary record.”

2019000163

5
In claim 2, Complainant alleged that on January 14, 2017, the Medical Center Director removed
her from employment for Failure to Obtain Radiographs, Unauthorized Absence, and Failure to
Follow Leave Procedures.

The Chief stated that he proposed that Complainant be terminated from Agency employment for
failure to take radiographs, unauthorized absence and failure to follow leave procedures. The
Chief explained that all Dental Hygienists were given instructions on how frequently dental
radiographs were to be obtained. The Chief stated that Complainant had to be constantly
reminded to put in her leave requests after returning to work from leave. Further, the Chief
stated that Complainant had been given a reprimand and a 5-day suspension and should have
know what her responsibilities were.

The Chief stated at that time he worked with a Human Resource (HR) Specialist concerning
Complainant’s poor performance and attendance. The Chief stated that in September 2016, he
issued Complainant an inquiry letter “to find out information why she wasn’t following
procedures.” The Chief stated that based upon the letter of inquiry, management talked with HR
“about the next step that we needed to do.” The Chief further stated that in November 2016,
Complainant was given an advanced notice of the proposed removal.

The Medical Center Director (over 40, no disability/prior protected activity) stated that she was
the deciding official to terminate Complainant from Agency employment. The Director
explained that Complainant was removed after a third time offense involving unauthorized
absences and failure to follow instructions. She stated that she used the Douglas factors and the
Agency’s policies in her decision to terminate her from Agency employment. The Director
noted that Complainant had received training and was aware of the procedures she had violated.

Further, the Director stated that prior to terminating Complainant, she met with Complainant, her
union representative, and HR Specialist. During the meeting, Complainant described family
problems that contributed to her attendance record. She asked to be place in another position
rather than be removed. The Director stated that she was able to find a position for Complainant
and advise HR to offer the position to Complainant. The Director stated, however, HR informed
her that Complainant was offered the position but that Complainant chose to quit instead.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

2019000163

6
STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
2019000163

7

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 Complainant’s 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

March 27, 2019
Date