Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 10, 2015

01-2013-0822-0500 (E.E.O.C. Sep. 10, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120130822

Hearing No. 430-2008-00549X

Agency No. 2004-0659-2008101974

DECISION

On December 19, 2012, Complainant filed an appeal from the Agency’s November 26, 2012,
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. 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

On March 4, 2007, the Agency hired Complainant as a Probationary Medical Technician at its
medical center in Salisbury, North Carolina, where she was assigned to Pathology and
Laboratory Services. She was terminated from her position, effective February 29, 2008. On
March 26, 2008, Complainant filed an EEO complaint in which she alleged that the Acting
Laboratory Manager, her second-line supervisor (S2) discriminated against her on the bases of
pregnancy and retaliated against her for previous union activity by initiating the termination
action.1

1When asked by the investigator to describe her prior EEO activity, Complainant replied that
her former Laboratory Supervisor had threatened her because of a complaint she had raised
with the union. Exhibit (Ex.) B1, p. 3. The Commission has long held that reprisal based on
union activity, wherein no discrimination allegations were raised, is not protected under the
statutes it enforces. Complainant v. Department of Homeland Security, EEOC Appeal No.
She further alleged that her Laboratory Supervisor (S1) had assisted S2 in
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orchestrating the termination by silently monitoring her and reporting complaints about her
from third parties. Ex. B1, p. 12.

In a letter addressed to Complainant dated February 22, 2008, the Acting Human Resources
Chief notified her that she would be discharged during her probationary period, effective
February 29th

. The stated reason for the termination was “unprofessional conduct.”
According to the specification, from October 31, 2007 to February 11, 2008, there had been
sixteen documented and verbal complaints from co-workers and patients regarding
Complainant’s conduct. Ex. C9, p. 1. A nurse reported that Complainant refused to pick up
flu swabs and urine specimens when asked to. Ex. C10, p. 3. An intern reported that
Complainant made racially-oriented comments about the fact that she and her husband had
adopted a biracial child. Ex. C10, p. 5. A second nurse reported that Complainant had
refused to assist in a phlebotomy procedure in the intensive care unit. Ex. C10, p. 6. The
record includes statements of a similar tone and nature from other staff members. Ex. B3, pp.
12-22; Ex. C10, pp. 7-33. Based on these reports, and upon information she received from
S1, S2 contacted the Human Resources Office to request that Complainant be terminated. Ex.
B2; Ex. B3; Ex. B4; Ex. B5; Ex. C6, p. 9; Ex. C10, p. 1.
At the conclusion of the ensuing investigation, 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 timely
requested a hearing. The AJ assigned to the case granted the Agency’s motion for summary
judgment and issued a decision on September 26, 2012. 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.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for the
personnel action. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248,
259 (1981). Therefore, in order to warrant a hearing on her disparate treatment claim in
connection with her termination, Complainant would have to present enough evidence to raise
a genuine issue of material fact as to whether S2 or any other official involved in the
termination proceeding was motivated by unlawful considerations of her pregnancy when they
made the decision to fire her. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000). Such evidence can take the form of discriminatory
statements or past personal treatment, comparative or statistical data showing significant
discrepancies, unequal application of Agency policy, deviations from standard procedures
without explanation or justification, or inadequately explained inconsistencies in the evidentiary
record.

0120130831 (June 13, 2014). Complainant did not raise issues of discrimination during her
union activity.
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S2’s affidavit testimony has been corroborated by sworn statements from S1 and the Acting
Human Resources Chief who signed the termination letter, as well as by contemporaneously
prepared memoranda and reports of contact documenting Complainant’s conduct and behavior
during her probationary term. While Complainant asserts that the actions taken by S2 were
discriminatory, she has not presented any sworn statements from other witnesses or documents
that contradict S2’s explanation for her actions. We therefore find, as did the Agency that
Complainant failed to raise a genuine issue of material fact as to whether S2 was motivated by
unlawful considerations of her pregnancy when she made the decision to fire Complainant.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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
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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 Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations

September 10, 2015
Date