0120141588
09-09-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141588
Agency No. 200406372013100654
DECISION
On March 14, 2014, Complainant filed an appeal from the Agency's February 6, 2014, final decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant at the Agency's Medical Center facility in Asheville, North Carolina.
On February 27, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and age (over 40 at time of incident) when:
1. On November 16, 2012 Complainant received a letter of counseling (LOC);
2. On November 19, 2012 Complainant was placed on administrative leave pending termination; and
3. On December 3, 2012, Complainant's employment with the Agency was terminated.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that the Agency articulated legitimate nondiscriminatory reasons for its actions, namely that such discipline was administered because Complainant engaged in several instances of disrespectful conduct and inappropriate behavior towards supervisors and co-workers. The FAD further found that Complainant failed to establish that such articulated reasons were pretextual.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 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").
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 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. See Hicks, supra.
In order to establish a prima facie case, a complainant may show that she is a member of a protected class, that she was subjected to adverse treatment, and that she was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its actions. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983). Specifically, the November 16, 2012 LOC stated:
a. On 10/25/12 as the Lead MSA attempted to introduce you to Surgical Service's Interim Administrative Officer, you kept your back to her, were perceived as being disrespectful in manner and tone stating "I already know of her,"
b. On 10/30/12 during training, shoving [sic] your chair back, throwing up your hands and stating "you deal with it" to a Senior Clerk in a waiting area in front of a patient. Later that day, asking [sic] co-workers about scheduling but refusing to take instruction from the Senior Clerk stating "I told you I didn't need anything."
c. On 11/01/12 at the Minor Surgery clinic counter facing patient waiting area. Your rude behavior toward a co-worker; this co-worker said that you "got in her face" and were "abrupt, rude and unprofessional".
d. On 11/02/12 failure to follow instructions by the Senior Clerk and log in to the Automatic Call Distribution (ACD) phone system for patient phone calls. After being directed at approximately 09:45-10:00, you stated to the Senior Clerk that you did not have to and would only answer internal calls. After being reminded ACD calls are part of your job duties, you still did not log on until 12:47. When asked why you said "I forgot". Your ACD phone production for that day consisted of 1 call. This is in a clinic that received 74 patient calls but could only answer 54 resulting in a 27% abandonment rate; your failure to follow instructions directly impacted our veterans and customers.
See Report of Investigation (ROI), Exhibit C5.
With regard to Complainant being placed on administrative leave and subsequently terminated, the notification letter stated that the actions were being taken "due to failure to demonstrate the requisite conduct to perform the duties of this position." See ROI, Exhibit C4. The Human Resources Specialist (HR: Caucasian, 52 years old) who helped draft the letter averred that subsequent to issuing the LOC, management learned of additional incidents of unprofessional behavior from Complainant that were not included in the LOC. See id., B4, pp. 11-12.
The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden thus returns to the complainant to demonstrate, by a preponderance of the evidence, that the agency's reasons were pretextual, that is, they were not the true reasons or the actions were influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; Hicks, 509 U.S. at 519.
Complainant denied the accusations leveled against her and averred instead that it was her coworkers who were "hateful." ROI, Exhibit B1, p. 11. Complainant further denied that she wouldn't take calls, but said that, because she was still new, she "didn't feel comfortable doing it," id., p. 14. Complainant further averred that "I'm going to be honest with you. It had got so crowded in the clinic that I didn't get back on the phone in enough time that satisfied them, but it wasn't like I was avoiding it." Id. In addition, Complainant averred that she did not receive enough training and that:
The reason why I had conflict with them, because every time I asked a question, they always said I'm doing my job. I'm doing this, I'm doing that. And, yes, some of the managers if I make a mistake, instead of going to another clerk to ask me to tell them to correct my mistake, I would say, is that my mistake? Can you show I mean, give it to me and I'll correct it so I know the job. And they would pay me no mind and give it to one of the other clerks to do it. So, yeah, naturally you [sic] going to start getting frustrated. And, yes, I was frustrated because every time I tried to do something, it was always something. And the thing about it is, from the first day that I got there, I let them know from the beginning that I did not want to be in that section because it was a lot of confusion before I even came there.
ROI, Exhibit B6, p.4
Complainant denied that she was the source of conflict in the office, saying
You know what, let me tell you something. That's a big lie. Every day I came to work 45 minutes early, did all those recall letters, got that manual out -- still got the freaking manual -- I got the manual out, read in a manual and taught myself. The confusion came from [Complainant's coworkers]. They were the ones that would get in the office, talk about people. Then they come back out and then they say, '[Complainant] we just want to let you know that you made this mistake.' Like they go back there in the computer, go back there to see how many mistakes I made instead of coming and telling me that I made mistakes. That office was screwed up before I even came in there because everybody they introduced me to, they asked me what clinic I was in. I said minor surgery. You know what they told me? 'Girl, we wish you luck. Girl, we going to see how long you going to last. Girl, I stayed in there 15 days and I hurried up and got out of there'. So all even the union rep, Mr. [---], told me that I was in a bad pit. That first day I got there, I told them I didn't want to be around there.
Id., B6, p. 7
Following a review of the record we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination occurred. While Complainant denies the allegations against her and accuses her coworkers, she has not presented sufficient evidence of animus against her protected bases or evidence that the Agency's articulated reasons for its actions were pretext to mask prohibited discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established that discrimination occurred and we AFFIRM the FAD.
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 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 09, 2014
__________________
Date
2
0120141588
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141588