Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionSep 12, 20130120114250 (E.E.O.C. Sep. 12, 2013) Copy Citation 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 (Veterans Health Administration), Agency. Appeal No. 0120114250 Hearing No. 450-2011-00129X Agency No. 200305492010103891 DECISION On September 12, 2011, Complainant filed an appeal from the Agency’s August 16, 2011 final order 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Registered Nurse (RN) in the Telemetry Department located in Dallas, Texas. On October 12, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Indian) and in reprisal for prior protected EEO activity when on July 5, 2010, she was terminated from her temporary excepted appointment. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 29, 2011 motion for summary judgment and issued a decision on July 28, 2011. 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. 0120114250 2 UNDISPUTED FACTS Complainant was hired by the Agency, effective November 22, 2009, under a temporary excepted appointment. In February 2010, Complainant was given a written counseling memorandum for lack of attentiveness, disregard for patient safety, and unprofessional response to a patient complaining of chest pain. On April 18, 2010, Complainant was given another written counseling memorandum for failure to document blood pressure during the administration of a blood product. Complainant was also given verbal counseling for sick leave abuse and failure to maintain her work schedule. By memorandum dated May 5, 2010, Complainant’s supervisor (S1) requested that Complainant "not be permanently appointed" due to the performance failures noted above. By e-mail message dated May 22, 2010, Complainant complained to S1 and others that the scheduling system was motivated by racial discrimination. By letter dated June 21, 2010, Complainant was notified that her temporary appointment would be terminated effective July 5, 2010. Complainant submitted her resignation for personal reasons effective July 5, 2010. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 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. The AJ found that Complainant failed to present evidence showing that similarly situated individuals outside her protected status were treated differently under similar conditions. In addition, the AJ concluded that even assuming that Complainant presented a prima facie case of discrimination or retaliation, she nevertheless failed to present evidence showing that the Agency’s articulated legitimate, non-discriminatory reason for its actions was a pretext for unlawful motives. Specifically, the AJ noted that the Agency presented evidence that Complainant used up her sick leave during the first few months of work. The Agency also presented evidence that Complainant was counseled regarding significant performance failures, including her failure to respond to a patient in need and her failure to document blood pressure during the administration of a blood product. The AJ also concluded that Complainant failed to identify disputes of material fact. Specifically, the AJ noted that Complainant solely argued that she “passed on” a patient’s vital information rather than denying S1’s assertion that she failed to enter such information into the Computerized Patient Record System (CPRS). The AJ also noted that the Agency provided documentary evidence in support of S1’s assertion that she made the decision to terminate Complainant before Complainant sent her May 22, 2010 memorandum complaining of racial discrimination. 0120114250 3 On appeal, for the first time, Complainant asserts, among other things, that all the facts surrounding her counseling session were false, including the basis for the counseling. However, such assertion, without any corroborating documentary or testimonial evidence, does not remedy the evidentiary failures herein. Based on a thorough review of the record, we AFFIRM the Agency’s final order. 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 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 0120114250 4 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 September 12, 2013 Date Copy with citationCopy as parenthetical citation