[Redacted], Virgina K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 22, 2022

Appeal No. 2022001654 (E.E.O.C. Dec. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virgina K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001654 Hearing No. 420-2021-00228X Agency No. 2003-0520-2021101616 DECISION On February 4, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from an Agency final order concerning an 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. BACKGROUND On January 5, 2020, Complainant was hired as a Medical Technologist, GS-9, Step 6, at the Agency’s Pathology Lab Med SVC, at the Agency’s Medical Center in Biloxi, Mississippi, subject to a one-year probationary period. The Supervisory Medical Technologist (“the Supervisor”) was Complainant’s direct supervisor.2 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. 2 The record reflects that the Supervisor is no longer working at the Biloxi Mississippi VA Medical Center. 2022001654 2 On February 19, 2021, Complainant filed a formal EEO complaint alleging the Agency discriminated against her and subjected her to a hostile work environment based on her race (African American) when: 1. From January 2020 to June 2020, the Supervisor failed to act when Complainant reported the Medical Technologist failed to provide adequate training in chemistry. 2. From April 2020 to July 2020, the Supervisor failed to provide Complainant with proper training for reporting lab values outside of the normal range. 3. On or about June 2020, the Supervisor instructed Complainant to initial off on training sheets for training that was never completed. 4. On October 24, 2020, the Supervisor accused Complainant of mislabeling a urine culture, waited more than 7 days to notify Complainant of a mistake, neglected to properly counsel Complaint, failed to provide a copy of the incident report to Complainant and failed to provide guidance to the Complainant on how to improve the process. 5. On November 23, 2020, the Chief of Pathology and Laboratory Medicine made the following statements: a. Complainant continues to not understand a patient’s results print-out; b. Complainant actions have negatively impacted the efficiently of the service and patient care; c. Complainant was unable to work alone even after extensive training; and d. Complainant was unable to complete work assignments within time frame. 6. On November 23, 2020, the Supervisor failed to counsel Complainant for the mistakes made and failed to develop an improvement plan. 7. On December 17, 2020, the Chief of Pathology and Laboratory Medicine terminated Complainant during her probationary period. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing, presenting the motion in the context of both a harassment and a disparate treatment analysis. Complainant did not file an opposition to the Agency’s motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. 2022001654 3 The Agency issued its final order adopting the AJ’s summary judgment decision finding no discrimination.3 The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. The AJ determined that based on her review of the record, there were no genuine disputes of material fact and no questions of credibility existed. Based on the evidence developed during the investigation, the AJ determined that the Chief of Pathology and Laboratory Medicine (White, Native American) found that Complainant, as a probationary employee, was provided extended period of repeated and extensive training. However, Complainant was nonetheless unable to work at the full Medical Technologist capacity which had a negative impact upon the efficiency of the service and patient care. The Chief of Pathology and Laboratory Medicine determined that it was therefore necessary to terminate Complainant’s employment during her one-year probationary period. Complainant claimed that the Supervisor never wanted her in the lab from the start of her employment, and that she was set up to fail. 3 There is no copy of the Agency’s final order in the record. On appeal, however, the Agency references the final order, and argues that the AJ’s summary judgment decision was proper. Even in the absence of a final order, given these circumstances, we determine that there is sufficient documentation of record to review this case. 2022001654 4 Specifically, Complainant claimed that she was not adequately and properly trained. Moreover, Complainant claimed that the alleged inadequate training she experienced was due to her race. However, the record reflects that the Complainant’s direct supervisor and other employees made extensive efforts to assist Complainant with training, trying to assist her to be successful in her probationary period. In addition, the Supervisor gave Complainant the benefit of an extra additional 90-day training period. The record reflects that such extensive training and an extended training period had not previously been necessary with other new employees. Complainant states on appeal that her supervisor scolded and humiliated her continuously. However, the record reflects that Complainant’s supervisor was simply addressing and explaining the chemistry quality control process. Beyond Complainant’s bare assertions, there is nothing on the report of investigation that supports Complainant’s claim of “scolding or humiliation.” In addition, Complainant stated that the Supervisor intentionally took off from July 7, 2020 to July 17, 2020, so it would appear as if Complainant had tardily submitted documents on July 21, 2020. Again, there is nothing in the report of investigation that supports this speculative contention. The record contains a copy of the Complainant’s Termination During Probationary Period dated December 15, 2020. Therein, the Chief Human Resources Officer placed Complainant on notice that the Chief, Pathology and Laboratory Medicine Service had recommended that Complainant be terminated from her position for failure to qualify during her probationary period. Complainant’s termination was due to unacceptable performance. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s summary judgment decision finding no discrimination was established. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2022001654 5 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022001654 6 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 December 22, 2022 Date