Ela O.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

0120181927 (E.E.O.C. Sep. 10, 2019)

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

Ela O.,1
Complainant,

v.

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

Appeal No. 0120181927

Agency No. 200H-0621-2013101655

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 18, 2018, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant established that the Agency discriminated against
her based on her disability when it assigned her to a 120-day detail assignment, changed her tour
of duty, limited her duties, and suspended her for five calendar days.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at
the Agency’s James H. Quillen Veterans Affair Health Care System in Mountain Home,
Tennessee.

On November 10, 2012, the “WanderGuard” alarm went off indicating that a patient had
wandered away. A coworker (CW) (no disability) stated that Complainant refused to respond to
the alarm. When CW asked Complainant why she did not respond, Complainant screamed at
CW, and another employee had to deescalate the situation. CW stated that she reported the
incident to the police, and that she reported additional incidents when she felt harassed by
Complainant to their supervisor (S1) (no disability) on November 14, December 12, and
December 26, 2012 . Report of Investigation (ROI) at 217-18, 256, 258-59.

On January 17, 2013, S1 informed Complainant that she would be temporarily detailed for 120
days to the In-Patient Phlebotomy Unit (IPPU) until a determination was made based on the
information obtained in a “fact finding.” Additionally, effective January 21, 2013, Complainant’s
schedule was changed from 11:30 a.m. to 12:00 midnight, to 7:30 a.m. to 4:00 p.m. S1 informed
Complainant that during her detail assignment, she was to perform only patient care duties
specific to phlebotomy. ROI at 255.

On March 12, 2013, Complainant’s second-line supervisor (S2) (no disability) issued
Complainant a proposed five calendar-day suspension for Failure to Follow Clinical Policy.
Specifically, on December 31, 2012, Complainant used the wrong type of tubing, which resulted
in a patient not receiving his scheduled dose of antibiotics. ROI at 334-6. On May 13, 2017, the
Medical Center Director (MCD) (no disability) sustained the suspension. ROI at 338-9.

EEO Complaint

On April 19, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of disability (cutaneous lupus and fibromyalgia) when:

1. effective January 21, 2013, S1 detailed her for 120 days to the IPPU, changing her
tour of duty and limiting her duties to those related to phlebotomy; and

2. from May 20-24, 2013, she was suspended for five calendar-days.

On June 20, 2013, the Agency informed Complainant that it accepted the above claims for
investigation. However, the Agency dismissed additional allegations of discrimination related to
when management rejected Complainant’s offer of a proposed settlement and, on unspecified
dates, management subjected her to progressive discipline. The Agency noted that it requested
additional information from Complainant, who did not respond. Accordingly, the Agency
dismissed these allegations for failure to state a claim. ROI at 82-85.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of her right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant timely requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that
the Agency subjected her to discrimination as alleged.

As an initial matter, the Agency noted that it previously had dismissed Complainant’s allegations
of discrimination when management officials allegedly rejected her settlement proposal, and
subjected her to progressive discipline on unspecified dates, for failure to state a claim.

The Agency did not include a prima face case analysis because management officials had
articulated legitimate, nondiscriminatory reasons for their actions. For claim 1, the Agency
separated Complainant from CW due to CW’s allegations that Complainant physically
threatened her. The detail assignment to IPPU was appropriate because Complainant was
qualified to perform duties within IPPU. Additionally, Complainant’s work schedule was
changed as a consequence of the detail assignment because the IPPU closes at 5:00 p.m.

For claim 2, the Agency suspended Complainant for failing to follow clinical policy when she
did not: (1) properly administer prescribed antibiotics; (2) use the proper intravenous (IV)
tubing; and (3) monitor the IV to ensure that it was working properly. Complainant’s previous
disciplinary record was an aggravating factor in the Agency’s decision to sustain the five
calendar-day suspension.

Complainant argued that the reasons were pretext for discrimination because CW’s allegations
were false, and she did not make the errors related to her performance that resulted in the
suspension. However, the Agency found that Complainant did not provide any evidence to
support her assertions. Additionally, Complainant argued that management officials never
disciplined another coworker who was outside of her protected category, but the Agency found
that there was no evidence that the coworker was similarly situated to Complainant with regard
to the standard of performance or conduct. Lastly, the Agency noted that Complainant alleged
that S1 told her that she should “apply for disability.” However, Complainant did not provide
evidence that this occurred. As such, the Agency concluded that Complainant did not show
pretext for discrimination, and that the Agency did not discriminate against her as alleged.

Complainant filed the instant appeal but did not submit a statement in support of her appeal. The
Agency filed a response to Complainant’s appeal, requesting that the Commission affirm its final
decision.

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ANALYSIS AND FINDINGS

Standard of Review

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 Chap. 9, § VI.A. (Aug. 5, 2015) (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”).

Procedural Dismissal

An agency shall accept a complaint from any aggrieved employee or applicant for employment
who believes that she has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(a).
The Commission has long defined an “aggrieved employee” as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). When the
complainant does not allege she is aggrieved within the meaning of the regulations, the agency
shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).

We find that the Agency properly dismissed Complainant’s claims that she was discriminated
against when the Agency rejected her settlement proposal and issued unidentified progressive
discipline. The record shows that the Agency requested additional information from Complainant
on May 8, and 30, 2013. ROI at 95-97, 102-04. When Complainant did not respond, the Agency
dismissed the claims for failure to state a claim. ROI at 83. We find that the Agency’s rejection
of Complainant’s settlement proposal was not a harm or loss with respect to a term, condition, or
privilege of employment. Additionally, Complainant did not provide sufficient information to
show that she was subjected to progressive discipline, other than the five (5) calendar day
suspension. As such, we will affirm the Agency’s procedural dismissal of these two allegations
of discrimination for failure to state a claim.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir.
1976). For Complainant to prevail, she must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse employment action.
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Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13.
Once Complainant has established a prima facie case, the burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts
back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502
(1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-16 (1983).

Assuming, arguendo, that Complainant established a prima facie case of disability
discrimination, we find that the management officials proffered legitimate, nondiscriminatory
reasons for their actions. For claim 1, S1 stated that she detailed Complainant because CW filed
a hostile work environment claim against Complainant. S1 stated that she needed to move
Complainant so that the two would not have contact with each other until she completed her fact-
finding. S1 added that she moved Complainant because she “threatened to beat somebody up.”
ROI at 193, 195. The record shows that multiple witnesses heard Complainant state, “if I lose my
job, I will kill that bitch,” “I wish I could catch that bitch out,” “I will kill her,” and that she
would “get back” at an unnamed individual. ROI at 264, 285, 287-88.

S1 added that Complainant’s tour of duty was changed during the detail assignment because the
IPPU is only open from about 7:00 a.m. until 5:00 p.m. Additionally, S1 stated that the detail to
the IPPU was the most appropriate assignment for Complainant at that time, and that phlebotomy
was the only work allowed in the IPPU. ROI at 194.

For claim 2, S2 proposed the five calendar-day suspension because Complainant used the wrong
tubing, and the patient did not receive his antibiotics. S2 added that the patient was never
checked on again, and that the morning shift nurse discovered that the patient had not received
the antibiotics. S2 stated that it was standard practice to check in on a patient to ensure that the
IV was in the vein. ROI at 205-07. MCD stated that she reviewed the proposed suspension, in
addition to the oral and written replies from Complainant, before she decided to sustain the
suspension. MCD stated that the gravity of the charges warranted a five calendar-day suspension.
ROI at 213.

Complainant has not shown that the proffered reasons were pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise
not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05. In this
case, Complainant made bare assertions that management officials discriminated against her
based on her disability, which are insufficient to prove pretext, or that their actions were
discriminatory.
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Accordingly, we find that Complainant has not established that the Agency discriminated against
her based on her disability when it assigned her to a 120-day detail assignment, changed her
tour-of-duty, limited her duties, and suspended her for five calendar-days.

CONCLUSION

We find that Complainant did not establish that the Agency discriminated against her based on
her disability when it assigned her to a 120-day detail assignment, changed her tour-of-duty,
limited her duties, and suspended her for five calendar-days. Therefore, based on a thorough
review of the record and the contentions on appeal, including those not specifically addressed
herein, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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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 (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 Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 10, 2019
Date