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

Equal Employment Opportunity Commission

Sep 19, 2014

0120131874 (E.E.O.C. Sep. 19, 2014)

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. 0120131874

Hearing No. 560-2008-00184X

Agency Nos. 2003-0589-2007103353 & 2003-0589-2008102214

DECISION
On April 11, 2013, Complainant filed an appeal from the Agency’s April 4, 2013 final
decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 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 for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Worker on
the Mental Health Intensive Care Management (MHICM) team at the Agency’s medical center
in Kansas City, Missouri. She was issued a proposed notice of removal by her second-line
supervisor, the mental health services chief (S2), which ultimately took effect on March 8,
2007. Complainant filed a mixed case complaint challenging the removal, but in Complainant
v. Department of Veterans Affairs

, EEOC Petition No. 0320080047 (April 22, 2008), the
Commission concurred with the final decision of the MSPB finding that the Agency did not
discriminate against Complainant in carrying out the removal.
While reviewing the case file for that complaint, she discovered that her first-line supervisor,
the clinical social worker supervisor (S1) had given her a performance appraisal rating of
unsatisfactory for the performance period between August 1 and October 30, 2006. She filed
complaint No. 2003-0589-2007103353 (3353) on August 31, 2007, in which she alleged that
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S1 had discriminated against her on the bases of race (Black), disability, sex (female), age (44)
and in reprisal for prior EEO activity. On March 9, 2008, Complainant learned that her third-
line supervisor, the MHICM program director (S3) had declined to give her a positive
reference when she applied for a position at another VA facility. She filed complaint No. 2003-
0589-2008102214 (2214) on March 26, 2008, in which she alleged that S3 had discriminated
against her on the same bases identified in Complaint No. 3353.

The Agency consolidated both complaints for investigation and thereafter 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 requested a hearing, but on
October 22, 2012, the AJ dismissed her request for failure to show good cause in not providing
information on her inability to proceed with the hearing. The AJ remanded the complaint to
the Agency, and 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. On appeal, Complainant contests the Agency’s final decision on its
merits.

Complaint No. 3353 – Performance Appraisal Rating of Unsatisfactory

According to Complainant’s performance plan, the rating period ran from August 1, 2006 until
October 30, 2006. The plan consisted of five elements: (a) direct patient care; (b) professional
relationships; (c) professional responsibilities; (d) organizational responsibilities; and (e) safety
and security. In the progress review section of the plan, S1 indicated that Complainant needed
improvement to be fully successful or better. S1 signed and dated the progress review on
September 29, 2006. Complainant’s name appears in the progress review section as well as
the September 29th

date, but not her signature. In the actual achievement section of the rating,
Complainant received ratings of less than fully successful on all five performance elements,
and consequently, she was given an overall performance rating of unsatisfactory. S1 prepared
the rating while S2 concurred. Investigative Report (IR) 155-59.
The appraisal did not include an explanation from S1 as to why he rated Complainant’s
performance as unsatisfactory across the board. In her affidavit, Complainant stated that she
discovered what she characterized as a “bogus and fabricated” performance appraisal that had
been hidden in the investigative file for her mixed-case termination complaint. When asked by
the investigator why she believed that she was given a less-than-successful performance rating,
Complainant maintained that the rating and the fact that she did not discover it until June 8,
2007, constituted direct evidence of an intent to discriminate against her on the part of S1 and
S2, and to cover up their discriminatory acts. IR 29, 96-97, 127, 129, 131-32.

S1 acknowledged that he directly supervised Complainant from November 2005 until
November 2006. He stated that he was not aware that Complainant had a disability because
Complainant never brought her condition to his attention. He stated that Complainant had been
“performing beautifully” until she and another co-worker had gone for training on an
unspecified date in 2006. According to S1, when Complainant returned from the training, she
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had accused her co-worker of faking a sickness and food poisoning, and that the situation
between the two of them had deteriorated to the point that Complainant believed that her safety
was in jeopardy. S1 further stated that he had had several conversations with Complainant to
try and resolve the issue, but the situation continued to worsen, and that eventually,
Complainant stopped communicating with other members of the MHICM staff. When asked by
the investigator whether the appraisal rating he had given to Complainant was retaliatory, S1
replied no. He averred that Complainant’s perception of her fellow staff members was not
based on any facts, that he and other management officials had tried to work with her, and that
Complainant had refused to work with them. In particular, S1 stated that he had meetings with
Complainant and the other members of the MHICM team to try and resolve the conflicts, to no
avail. IR 104, 105, 106, 107, 114.

A letter from Complainant’s treating psychiatrist dated July 19, 2006, stated that Complainant
had been coping with a hostile work environment that had precipitated a major depressive
episode, which aggravated her fibromyalgia, making it much more difficult to treat. As a
result of her condition, Complainant went out on leave on August 1, 2006, and was not cleared
to return to work until March 12, 2007. In a memorandum dated November 9, 2006, S3 stated
that Complainant’s continued absence from her job was impacting the MHICM program’s
ability to provide quality care to its patients. S3 further stated that Complainant had exhausted
all of her leave on October 29, 2006, including leave taken under the Family and Medical
Leave Act, and that she had the option of either returning to duty by November 13, 2006, or
taking disability retirement. Complainant remained out of work, and on January 23, 2007, S3
issued Complainant a notice of proposed removal, which eventually became final on March 8,
2007. As previously noted, the MSPB upheld Complainant’s removal, and the Commission
concurred. IR 140-47, 181-82.

Prior to the breakdown that led to her taking extended leave, Complainant’s performance was
such that she received a number of complimentary emails from her supervisors and from
patients and their families. In an email dated March 21, 2006, S3 forwarded a letter from a
veteran’s spouse who expressed gratitude to Complainant for the extensive assistance she
provided to her husband. That same day, S1 sent an email in which he pointed out that
Complainant goes the extra mile in establishing rapport with her patients and that her clinical
skills, particularly her ability to defuse anxiety, were very strong. A letter dated May 24,
2006, from the guardian of another patient directed to the head of the medical center expressed
similar sentiments toward Complainant, as did other emails and memoranda. IR 149-54, 167.

Complaint No. 2214 – The Job Reference

On April 18, 2007, after Complainant had been terminated, S3 prepared and signed a form
entitled, “Inquiry Concerning Applicant for Employment.” S3 noted on the form that
Complainant had been a social worker in the MHICM program, and that she had been
terminated on March 8, 2007. Under the section marked, “reason for discharge,” S3 noted
that she was unable to provide a rating due to the fact that Complainant was in a non-duty
status for an extensive period of time. S3 also noted on the form that she was aware of no
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incident that would call into question Complainant’s honesty. S3 averred that she kept her
answers as objective as possible. When asked by the investigator why she believed that S3 had
provided a false reference that failed to include positive information about her job
performance, Complainant replied that S3 was an Asian with ulterior motives to retaliate
against her, that S1 and S3 knew of her disabilities and took advantage of her mental incapacity
to further injure her, and S3 was younger than her, and that S1 and S3 knew of her prior EEO
activity. IR 99, 103-06, 178.

ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally 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 or reprisal. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576
(1978). The prima facie inquiry may be dispensed with, however, since S1 and S3 have
articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Serv.
Bd. of Governors v. Aikens

, 460 U.S. 711, 713-17 (1983). According to S1, Complainant
had not performed the duties of a social worker during the entire rating period, and had been
unable to function effectively with other members of the MHICM team. According to S3, she
prepared the reference based upon the information that was available to her at the time.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
explanations given by S1 and S3 were a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133. 143 (2000). Decisions made by agencies in the
course of business should not be disturbed unless there is evidence of unlawful motivation.
See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Such
evidence may take the form of discriminatory statements or past personal treatment,
comparative or statistical data, unequal application of Agency policy, or deviations from
standard procedures without explanation or justification. See McDonnell Douglas Corporation
v. Green ; , 411 U.S. at 804-05 Hovey v. Department of Housing & Urban Development,
EEOC Appeal No. 01973965, (Aug. 31, 2000). The focus of the pretext inquiry, however,
remains on the Agency’s motivation, not its business judgment. Glass v. United States Postal
Serv.

, EEOC Appeal No. 07A50068 (June 15, 2006).
In neither complaint has Complainant presented any evidence that falls into any of these
categories. She has not submitted or referred to any documents or affidavits which contradict
the sworn statements made by S1 or S3, or which call into question their credibility. While
Complainant’s performance prior to her depressive episode in 2006 was exemplary, and was
acknowledged as such, the fact remains that her performance had deteriorated to such an extent
that she was unable to function in her position for nearly eight months. Both the unsatisfactory
performance evaluation by S1 and the reference prepared by S3 are consistent with the
documentation of Complainant’s non-performance of her duties after August 1, 2006.
Complainant’s evidence of discriminatory motivation attributable to S1 and S3 consists entirely
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of her own unsupported assertions which, without corroboration from other sources, are
insufficient to show pretext. Porter v. Department of the Navy

, EEOC Petition No. 03800087
(January 14, 1981).

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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.
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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

Date
September 19, 2014