Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 7, 2013

0120111893 (E.E.O.C. Feb. 7, 2013)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120111893

Hearing No. 480-2008-00083X

Agency No. 200P-0691-2007103408

DECISION

On January 20, 2011, Complainant filed an appeal from the Agency’s December 17, 2010 final
order concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final
order.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Chaplain at the
Agency’s work facilities in Sepulveda and West Los Angeles, California. On August 21,
2007, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated
against her on the bases of sex (female) and religion (Charismatic Christian) when the Agency
terminated her, effective June 16, 2007. 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 timely requested a
hearing, and the AJ held a hearing on February 1-3 and 12, 2010, and issued a decision on
December 9, 2010.

The AJ found that no discrimination occurred. AJ Decision at 14. The record reveals that
Complainant was hired effective October 16, 2006, as a part-time Chaplain in the Agency’s
Hospice Unit. Id. at 1-2. Complainant was hired with a one year probationary period. Id. at
2. Complainant was responsible for interacting with all patients and their families, regardless
of their faith. Id. at 3. In addition to Complainant’s Chaplain position, the Hospice Unit was
composed of a Director, a nurse manager, staff nurses, a nurse practitioner, a physician, a
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social worker, a dietitian and occupational and recreational therapists. Id. The official who
terminated Complainant was the Chief of the Chaplain Service for the Greater Los Angeles
Healthcare System. Id. at 2. The AJ noted that unit members were expected to work as a
closely functioning team and in a collaborative manner. Id. at 3. The AJ observed that
Complainant felt like an outsider because she did not have her own office, telephone, or
computer and was the newest member of the Hospice Unit. Id. at 4. Complainant received
part of a conference room and repeatedly complained to the Chief about not having an office.
Id. at 7. Complainant also raised this issue with the Chief Executive Officer of the Agency
when he toured the Hospice Unit. Id. at 8.

On December 19, 2006, the Director (male, Jewish) sent the Chief (male, Protestant) an e-mail
wherein he stated that Complainant has had difficulty understanding the spiritual issues faced
by patients and has been unable to integrate as part of the team. Id. at 6. The Director noted
that Complainant had been prickly with the social worker (female, Jewish), nurse manager
(female, Catholic) and himself. Id. He added that he could not imagine matters improving
sufficiently to justify retaining her after her probationary period. Id. There had been several
episodes where Complainant’s remarks and attitude had been regarded unfavorably within the
unit. In one incident on November 14, 2006, at a Chaplain Service retreat, Complainant made
other staff members uncomfortable when she essentially told them this is what a Chaplain is
going to do and how we are going to do it. Id. at 5. At an inter-disciplinary team meeting,
Complainant gave a presentation about the role of Chaplains and the code of ethics for
Chaplains. Id. The nurse manager perceived that Complainant was reading from her resume.
Id. The Director stated that Complainant read for about ten minutes from her dissertation
about the role of a Chaplain. Id. The Director observed that Complainant’s presentation was
odd and out of place and it led him to conclude that she was not emotionally well suited for the
Hospice Unit’s environment and team. Id.

In another instance, the social worker had developed a series of quality of life programs/rituals
for consideration. Id. at 4. One such concept was a weekly Friday afternoon happy hour/wine
and cheese cart with the Chaplain and another was to have weekly made to order breakfast
served by volunteers. Id. Complainant objected to both proposals as she told the Chief that
the wine and cheese cart and making breakfast were not activities for a Chaplain. Id.
Complainant also complained about the social worker trying to tell her how to be a Chaplain.
Id. Shortly after Complainant was hired, the social worker voiced concerns to the Director
about conflicts regarding the roles of Complainant and others in the Hospice Unit. Id. at 5.

On January 16, 2007, the Chief gave Complainant a copy of the Director’s December 19, 2006
e-mail. Id. at 6. Complainant was subsequently removed from the Hospice Unit and assigned
to work at the West Los Angeles facility. Id. According to the Chief, he told Complainant
that he wanted to get her through her probationary period. Id. Complainant worked as a
Chaplain in the Intensive Care Unit and with drop-ins at West Los Angeles. Id. at 7.
Complainant shared an office with two other Protestant Chaplains at this facility. Id. at 8.
Two Chaplains, a Jewish female, and a Catholic male, had their own offices but unlike
Complainant, they were full-time employees. Id. Complainant did not have a telephone at this
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facility and used the general telephone number as her telephone number, although she was
given a pager. Id. All of the other Chaplains had a phone number where they could be
reached. Id. On June 5, 2007, Complainant learned that she would be terminated effective
June 16, 2007, due to an inability to fulfill the expectations of a Chaplain in a patient centered
environment. Id. at 7.

The AJ found that Complainant established a prima facie case of sex and religious
discrimination. Id. at 10. The AJ further found that the Agency articulated legitimate,
nondiscriminatory reasons for terminating Complainant prior to the expiration of her
probationary period. Id. As to the question of pretext, the AJ observed that although
Complainant established that not all of the Agency’s reasons were accurate, she did not prove
that either her sex or religion was a factor in her termination. Id. The AJ noted that the Chief
selected Complainant for the Chaplain position and the Director and nurse manager
recommended her with knowledge that she was female and Christian, and the Chief with
knowledge that she was a Charismatic Christian, whose chaplaincy was endorsed by the Full
Gospel Churches. Id.

The AJ observed that the Agency failed to adhere to its policies regarding performance
standards and evaluations. Id. at 11. Specifically, the AJ noted that Complainant did not
receive performance standards or a performance plan when she was hired, did not receive any
follow-up after her first 90 days, nor a progress review after her first 180 days. Id. The AJ
was critical of the Agency’s failure to inform Complainant in writing about her deficiencies
and her less than fully satisfactory performance in any critical element. Id. The AJ also
observed that the nurse manager had overstated the basis for her opinion that Complainant was
uncomfortable ministering to non-Christian patients, and did not demonstrate knowledge of
non-Christian rituals and beliefs. Id. at 12. Indeed, the AJ stated that the testimony of
relatives or friends of non-Christian patients established that Complainant was comfortable in
ministering to such patients and assisted them in engaging in their rituals and religious
practices. Id. at 12-13. Notwithstanding these errors on the part of the Agency, the AJ found
that they were not linked to Complainant’s sex or religion. Id. at 11, 13. The AJ stated that
there was no evidence that any other Chaplains presented similar challenges to their units
during their probationary periods. Id. at 11. The AJ regarded Complainant’s difficult
interactions with the social worker and the nurse manager as a major factor in her termination.
Id. at 12. The AJ further noted that during Complainant’s tenure at West Los Angeles, she
was perceived as sometimes avoiding interaction with certain visitors. Id. at 13. The AJ
attributed the termination to Complainant’s problems at both facilities and the fact that
Complainant had been hired specifically for the Hospice Unit, thereby limiting the Chief’s
options. Id. at 13-14. As to the differential treatment that Complainant experienced as to
office space, a telephone number, e-mail access and a computer, the AJ found that this was due
to Complainant’s part-time status and her status as the newest Chaplain at Sepulveda and West
Los Angeles. Id. at 13. Moreover, the AJ noted that several of the Chaplains who were
treated more favorably were female or Christian, including two Chaplains who were endorsed
by the Full Gospel Churches. Id.

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The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that given the AJ stated that she was meeting the normal
requirements of the Chaplain position, the Agency’s explanation that she was not fulfilling the
expectations of a Chaplain in a patient-centered environment is then pretext for discrimination.
Complainant maintains that the AJ erred in his analysis by looking at sex or religion as
discriminatory bases rather than sex and religion. Complainant states that she was treated
differently because she is a female Charismatic. Complainant argues that the disparate
treatment was reflected in office space, not having a computer or telephone number and no e-
mail access. According to Complainant, the Chief resented her efforts to obtain an office.
Complainant states that the Chief criticized her for raising her need for an office with the Chief
Executive Officer. Complainant states that there were several offices at Sepulveda that would
have been suitable as well as a desk that became available at West Los Angeles, but which the
Chief nevertheless denied her.

Complainant argues that all other Chaplains were provided with performance appraisal plans
and subsequent ratings at the 180-day mark. Complainant maintains that the lack of criteria
and feedback hindered her ability to successfully complete her probationary period.
Complainant contends that the Chief’s failure to comply with the Agency’s mandatory
evaluation procedures is evidence of discriminatory intent. Complainant challenges the
credibility of both the Chief and the nurse manager. With respect to the Chief, Complainant
maintains that he failed to investigate the accusation from the nurse manager that she had
difficulty working with non-Christian patients. According to Complainant, the declarations of
the family and friends of patients she ministered to establish that this accusation was
unfounded.

In response, the Agency asserts that the AJ properly compared Complainant’s circumstances to
those Chaplains who were full time employees, and the AJ noted the circumstances of fee-
based Chaplains only when it was appropriate to do so. The Agency rejects Complainant’s
contention that the AJ ignored evidence that she was treated differently than other Chaplains.
The Agency points out that the AJ found that Complainant was treated differently than other
Chaplains with regard to not receiving a performance plan; her performance not being
reviewed after 90 days and 180 days; and not receiving her own office, computer and
telephone number. Moreover, the Agency stated that it agrees that management erred in not
providing Complainant with a performance plan and performance evaluations. However, the
Agency states that management’s failure to do so was not attributable to discriminatory
motivation. The Agency asserts that the same management officials who knew Complainant’s
sex and religion at the time that they selected her also later decided she was not a good fit for
the Hospice Unit. Additionally, the Agency rejects Complainant’s argument that the AJ
ignored evidence that the Chief resented her and was hostile to her because she is a woman.
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The Agency notes that the Chief selected her for the Chaplain position and there is no evidence
that such resentment existed.

With regard to Complainant’s contention that her religion made her unacceptable to the
Hospice staff, the Agency asserts that Complainant’s personality conflicted with the
personalities of staff members, thereby adversely affecting the operation of the Hospice Unit.
As for Complainant’s attack on the credibility of its witnesses, the Agency acknowledges that
the AJ did not find credible all of the testimony of its witnesses. However, the Agency
maintains that the AJ was the best judge of credibility and the AJ found that discrimination did
not occur.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS

Upon review of the record, we find that the AJ’s factual findings are supported by substantial
evidence, and we find no reason not to defer to his credibility determinations. Complainant
has not established that her termination was attributable to her sex or religion. The record
indicates that Complainant was indeed treated differently with regard to not receiving a
performance plan and performance reviews. Complainant also appears to have arbitrarily been
denied various office-related equipment. These questionable management practices, however,
were not based on Complainant’s sex or religion.

The evidence suggests that Complainant’s termination was attributable to her inability to fit in
with the Hospice Unit’s teamwork approach. Complainant presented an independent,
domineering persona early in her tenure at Sepulveda and it is evident that the Director, nurse
manager and the social worker were not receptive to this type of office personality. Officials
in the Hospice Unit attested to the Unit being collaborative and a closely functioning inter-
disciplinary team. The fact that the officials who hired her for the Chaplain position were
aware at that time of her sex and religion and then were the same officials influential in her
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termination dispels to a large degree the likelihood that discriminatory motivation was a factor
in the termination.

We also are not persuaded that not being provided an office and certain equipment suggests
that Complainant’s termination was discriminatory. The factors underlying her not having an
office and the equipment appear to have been her part-time status, new employee status and her
being too demanding with the Chief in her efforts to obtain an office. It is evident that such
relentlessness, which included her questionable judgment in mentioning her need for an office
to the Agency’s Chief Executive Officer, was frowned upon by the Chief. Complainant’s
inability to successfully complete her probationary status was not to a large degree due to any
particular deficiencies in how she fulfilled her Chaplain duties with the patients, but rather her
strained relationships with other staff members. These personality conflicts and not her sex or
religion presented too much of an obstacle for the Chief to return her to the position for which
she had been hired. Based on a consideration of all the evidence in the record, we discern no
basis to disturb the AJ’s decision.

CONCLUSION

The Agency’s determination in its final order that no sex or religious discrimination occurred
is AFFIRMED.

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:

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
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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
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

February 7, 2013
Date