0120162253
05-10-2018
Catherine L.,1 Complainant, v. Robert L. Wilkie, Jr., Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Catherine L.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162253
Hearing No. 490-2015-00115X
Agency No. 200H06142014103916
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 18, 2016 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, VN-0610, 11, step 5, at the Agency's VAMC facility in Memphis, Tennessee.
On August 27, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to discriminated against her on the bases of race (Black), disability (mental and physical), and reprisal when, on December 9, 2013, she was terminated from her position as a Registered Nurse.2
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing.
On February 19, 2016, the AJ issued an Order dismissing the hearing due to Complainant's failure to attend a telephonic pre-hearing conference without good cause. The AJ remanded the complaint for a final agency decision based on the evidence developed during the investigation.
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.
The instant appeal followed.
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. (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").
In the case at hand, the AJ cancelled the hearing because Complainant failed to make herself available for a telephonic prehearing conference despite adequate advanced notice. The record shows that the AJ provided Complainant with an opportunity to show cause why she did not attend the conference, but she failed to do so. After review of the record on this issue, we conclude that the AJ's dismissal of Complainant's hearing request under these circumstances was appropriate.
A claim of discriminatory disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, responsible Agency officials testified that Complainant was removed from her position because she allowed her nursing license to lapse. Management had conducted a review of the unit where Complainant was employed in preparation for an upcoming accreditation (Joint Commission) visit. In the course of the review of the entire unit, it was discovered that Complainant's Mississippi nursing license was not active. Complainant was terminated because, without a license, she could not work with patients, the core responsibility of her job. The Chief Nurse (African American female) stated that after she met with Complainant to discuss the termination and Complainant told her it was an error on the part of the Board of Nursing, she checked into it and discovered that Complainant had known, well in advance, that there was an issue with her license, but had failed to follow through to get it renewed. She noted that a letter from the Board of Nursing confirmed that there had been no error on its part in this matter.
The burden is on Complainant to prove, by a preponderance of the evidence, that this proffered reason for her termination was really a pretext designed to mask discrimination. In an effort to establish pretext, Complainant again argued that the Board of Nursing had made a mistake and that the Agency should have assisted her in getting her license restored. However, there is no evidence that the Agency had any authority over the actions of the Board of Nursing, and Complainant was expected to use the Board's process to have her license restored.3
Complainant also alleged that a co-worker (also African American female) was allowed to keep her job when her license expired. However, the Chief Nurse denied this had occurred and Complainant provided no evidence of this beyond her bare assertion. As such, there is no way to conclude that this individual was similarly situated to Complainant but treated more favorably. Instead, the weight of the evidence supports the conclusion that Complainant was removed solely because her license had expired and her protected bases played no role in the decision. As such, we cannot find that Complainant has established that the Agency's actions were a pretext for discrimination.
To the extent that Complainant is also alleging discriminatory harassment, we again note that her claim only involves the termination decision. To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's protected bases played any role in her removal. Rather it was the expiration of her nursing license, a legitimate non-discriminatory reason. Thus, she cannot prevail on a discriminatory harassment claim regarding her termination.
CONCLUSION
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 finding no discrimination or harassment.
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.
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
May 10, 2018
__________________
Date
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.
2 Complainant initially also raised a number of events that occurred between December 2010 and October 2011. The Agency dismissed these other allegations on the ground of stating the same claim already pending or decided before the Agency, and/or for failing to comply with the regulatory time limits. On appeal, Complainant has not challenged the procedural dismissal of these other allegations. Therefore, they will not be addressed further in this decision.
3 Complainant apparently later had her license restored. In a letter dated December 20, 2013, the Board of Nursing stated that Complainant's license had been inactive since December 31, 2012, and was reactivated on December 19, 2013. Documentary evidence from the Board indicates there was no error on its part - Complainant had not submitted required documentation when she sought to renew her license in December 2012.
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