Nita H., Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 11, 2017

0120151915 (E.E.O.C. May. 11, 2017)

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

Nita H.,
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120151915

Hearing No. 520-2012-00139

Agency No. 200H-0523-2011102353

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 2,
2015, final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order finding no discrimination.

BACKGROUND

On March 28, 2010, Complainant was hired as a career conditional full-time Pharmacist/Clinical
Specialist, GS-12, at the Veterans Affairs Boston Healthcare System, Brockton Campus located
in Brockton, Massachusetts. Complainant was subject to a one year probationary period. During
the relevant time, the Inpatient Pharmacy Supervisor was Complainant’s first level supervisor
(S1). The Operations Manager was Complainant’s second level supervisor. The Chief of
Pharmacy Services was Complainant’s third level supervisor (S3).

On March 21, 2011, Complainant received a termination letter dated March 17, 2011. The letter
stated Complainant was terminated due to careless performance of job duties. Complainant’s
termination was effective March 23, 2011.

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.
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On June 1, 2011, Complainant filed an EEO complaint, which was subsequently amended,
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of age (56) and in reprisal for protected EEO activity when:

1. During the fall of 2010, a coworker falsely accused her of pulling labels from her
hands and management did nothing about it.
2. On March 11, 2011, during a meeting with Inpatient Supervisor (S1), he
suggested she look for a new job.
3. On March 21, 2011, she was terminated during her probationary period.

The Agency dismissed Complainant’s harassment claim for failure to state a claim. The Agency
accepted Complainant’s termination claim as a timely raised discrete claim that is independently
actionable.

At the conclusion of the investigation on the accepted claim, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the
Agency’s motion for a decision without a hearing and issued a decision without a hearing on
January 28, 2015.

In his decision, the AJ noted that Complainant asserted that S1 learned of her EEO complaint on
March 16, 2011, when an EEO investigator contacted him. The AJ noted S1 did not deny
knowing of Complainant’s protected activity on March 16. However, S1 and S3 maintained
their decision to terminate Complainant was made in February 2011. The AJ noted that to
support its claim, the Agency provided S3’s email dated February 25, 2011, to Human Resources
Specialist A (HR Specialist A) stating: “[HR Specialist A], Would like to set up a meeting early
next week to discuss a removal in the probationary period of Pharmacist [Complainant]. Her
EOD date is Mar 28th 2010.”

The AJ noted Comparative 1 was appointed as a tenured career full-time Pharmacist/Clinical
Specialist on August 1, 2010. The AJ stated that according to personnel records, Comparative 1
was not subject to a probationary period because she had previous “service counting toward
career tenure” from July 2009 through July 2010. The AJ recognized that Complainant claimed
that Comparative 1 was similarly situated since she was not terminated despite having similar
medication dispensing errors. In addition, the AJ noted Complainant asserted that, regardless of
probationary status, Comparative 1 was similarly situated because she was subjected to the same
performance standards as Complainant, and that Complainant should not have been terminated
for comparable medication errors.

The AJ found it undisputed Complainant committed the following errors during her probationary
period: on February 15, 2011, Complainant incorrectly labeled an IV order for Cefipime without
entering a base solution; on February 22, Complainant incorrectly labeled a Clonazepam order
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with a 30-day stop date instead of a 1-day stop date; and on March 3, Complainant dispensed an
order of Oxycodone for 20 tablets instead of the required 30 tablets. On March 3, 2011,
Complainant received a Letter of Counseling for her February errors. Four days later,
Complainant received a Letter of Counseling for her March dispensing error.

The AJ noted Complainant attested her dispensing errors were minor and comparable to errors
made by her colleagues. Complainant asserted her colleagues committed 53 medication errors
from June 2010 to March 2011, and that her mistakes were “no higher than that of the other
pharmacists in the department; yet she was reprimanded for them while others were not.”

The AJ determined Complainant failed to establish a prima facie case of disparate treatment
based on age, at least by way of comparative analysis. The AJ stated Complainant did not
identify a significantly younger comparative with her job title who received better treatment than
her. The AJ determined Comparative 1 was not an appropriate comparative as she was not a
probationary employee. The AJ noted in contrast to Complainant’s career conditional employee
status, Comparative 1 was a tenured Pharmacist. The AJ cited personnel records stating that
Comparative 1 had previous work experience from July 2009 through July 2010 that satisfied her
career conditional term. The AJ noted Complainant did not have the same status. The AJ found
Complainant had not presented evidence of a substantially younger employee in a probationary
status retained for similar mistakes. The AJ also stated that Complainant had not moved any
evidence into the record to suggest that age was a motivating factor in her termination.

Additionally, the AJ, granting all inferences in favor of Complainant, determined Complainant
could not make out a prima facie case of retaliation. The AJ acknowledged Complainant
engaged in protected activity by filing the present EEO complaint. However, the AJ found
unchallenged evidence that the Agency’s decision to terminate Complainant occurred before S1
learned of Complainant’s EEO activity in March 2011. In support of this assertion, the Agency
relied on the February 25, 2011 email by S3 to HR Specialist A asking that Complainant be
terminated. The AJ noted that as the email was written before the EEO investigator contacted S1
on March 16, 2011, evidence of the email precludes an inference that the Agency retaliated
against Complainant because there was no temporal connection between Complainant’s EEO
activity and her termination.

Even assuming Complainant could establish a retaliatory inference, the AJ noted the Agency
stated Complainant’s termination was the result of her careless job performance, citing examples
of it. The AJ found insufficient evidence in the record to suggest to a trier of fact that
performance issues were pretext for Complainant’s termination. The AJ noted that S3 stated the
February 25 email to HR Specialist A was sent to initiate Complainant’s termination from the
Agency. The AJ found Complainant presented no evidence to challenge S3’s attestation.
Instead she presented evidence of her pharmaceutical competency, such as her October 26, 2010
“Fully Successful” Performance Appraisal. The AJ noted that Complainant’s overall
performance from March through October 2010 is not the reason the Agency fired her. The AJ
noted the Agency articulated that Complainant’s dispensing errors at the tail end of her
probationary term in February and March 2011 led to her termination. The AJ found assuming
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the 53 dispensing errors committed by her colleagues from June 2010 to March 2011 were true,
reliance on these errors to show pretext was inapt because she had not shown that similarly
situated probationary employees made these errors.

The AJ found Complainant was a probationary employee. The AJ cited Boston VAMC Memo
05-007-LM which permitted termination of a probationary employee for poor work performance.
The AJ noted that while Complainant and Comparative 1 share many work similarities such as
the same supervisor and performance standards, the fact remains that Complainant was not
similarly situated to Comparative 1. The AJ determined there was no evidence to infer a
discriminatory motive for Complainant’s termination. Thus, the AJ granted the Agency’s motion
for summary judgment. The AJ also affirmed the Agency’s dismissal of Complainant’s hostile
work environment claim for failure to state a claim.

The Agency subsequently issued a final order on April 2, 2015. The Agency’s final order fully
implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

On appeal, Complainant cites the AJ’s delay of entering a decision on the Agency’s motion for
summary judgment. Complainant notes the AJ did not enter a decision until two and a half years
after the Agency’s motion was filed.

Complainant also argues that the AJ improperly found she did not establish a prima facie case of
age discrimination. Complainant claims that she and Comparative 1 were similarly situated
because they had the same standards of behavior for pharmacists, which she stated the Agency
conceded. She noted that both probationary and post-probationary employees are expected to
perform their work accurately, promptly, and cooperatively with their coworkers. Complainant
notes that the only difference between probationary and post-probationary categories of
employees is that, in S1’s words, there is “more of a free reign to terminate employees during
that one-year period.”

Complainant also claims the AJ erred in finding she did not establish a prima facie case of
retaliation. Complainant argues that the evidence arising after the February 25, 2011 email
demonstrates that she still had an opportunity to keep her job and that the Agency made the
determination to terminate her after her EEO complaint. Complainant cites S1’s deposition and
claims that S1 confirmed that as of March 7, 2011, Complainant was not going to be terminated
if her performance improved. Complainant notes that it was not until ten days later, following
her EEO complaint, that S1 prepared a document to support her termination.

In response to Complainant’s appeal, the Agency claims that Complainant failed to allege any
harm arising from the AJ’s delay in issuing his decision. Also, the Agency notes Complainant
fails to cite any legal authority that establishes a time frame for the issuance of an AJ’s decision.
In addition, the Agency argues that the facts show Complainant was a probationary employee
while Comparative 1 was a tenured career employee. The Agency also states the evidence
established that Complainant made egregious errors while Comparative 1’s errors were not as
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severe. Further, the Agency states the evidence shows that Agency officials began the process of
terminating Complainant prior to being made aware of her current EEO activity.

The Agency argues the record demonstrates that it articulated legitimate, non-discriminatory
reason for terminating Complainant. Specifically, Complainant made numerous egregious
medication errors. The Agency notes Complainant relies upon unsubstantiated “evidence” to
show pretext and documents of her own creation purporting to show medication errors of
Comparative 1. The Agency notes Complainant also relies upon deposition testimony purporting
to show she “still had an opportunity to keep her job.” The Agency states that this testimony
when viewed in context of the surrounding facts does not establish pretext as there is no evidence
that Complainant’s performance improved between the time the Agency initiated the termination
procedure and the date of her actual termination.

ANALYSIS AND FINDINGS

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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 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”).

At the outset, we note that Complainant does not challenge the Agency's dismissal of her hostile
work environment claim. The Commission has the discretion to review only those issues
specifically raised in an appeal. Accordingly, we will not address the dismissal of that claim.
Moreover, we note on appeal Complainant does not challenge the Agency’s definition of her
complaint.

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no disputes of material fact. While we acknowledge the lengthy delay by the AJ in issuing a
decision on the Agency’s motion for summary judgment, we find Complainant failed to show
harm as a result of the delay.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978).
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Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).

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); Complainant v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990).

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The Agency terminated complaint during her probationary period based on her careless job
performance, as evidenced by the medication errors cited in the record. Complainant has not
presented evidence of a substantially younger employee in a probationary status who made
similar mistakes and was retained by the Agency. Nor has Complainant presented any evidence
to suggest that age was a motivating factor in her termination. With regard to her claim of
retaliation, we find the February 25, 2011 email demonstrates that the Agency decided to
terminate Complainant prior to her March 2011 EEO activity. Complainant failed to proffer
probative evidence showing management’s decision to terminate her was a pretext for
discrimination or retaliation. We note Complainant herself acknowledged the difference
between probationary and post-probationary employees is that, in S1’s words, there is “more of a
free reign to terminate employees during that one-year period.” Upon review, we find
Complainant failed to show the Agency’s actions were motivated by discriminatory animus.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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
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 Complainant’s Right to
File a Civil Action for the specific time limits).
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FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

May 11, 2017
Date