Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 1, 2014

0120131203 (E.E.O.C. Aug. 1, 2014)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120131203

Agency No. 2003-0351-2011104854

DECISION
On February 2, 2013, Complainant filed an appeal from the Agency’s December 19, 2012,
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.

BACKGROUND
Complainant was hired on February 17, 2009, into a Term Appointment as a Veterans Claims
Examiner (VCE) in the Education Division at the Agency’s Regional Office in Muskogee,
Oklahoma. During the relevant time Person A, a Human Resources Specialist, served as the
Office of Workers’ Compensation Program (OWCP) Manager. Person B, Supervisory
Veterans Claims Examiner, was Complainant’s first level supervisor.

On July 18, 2011, Complainant reported that she fell on the job. Complainant contacted
Person A requesting Continuation of Pay (COP) benefits. Complainant was provided and
signed the relevant documents on July 18, 2011, and immediately became eligible for COP
benefits. The COP form noted that “continuation of regular pay (COP) not to exceed 45
days.”

On July 27, 2011, Person A contacted Complainant asking if she intended on filing an OWCP
claim. Complainant expressed uncertainty about whether OWCP was her best option.
Complainant stated that if Person A had any information that would help her make a more
informed decision, she would appreciate the help. Complainant and Person A exchanged many
electronic mail messages over the next few weeks regarding Complainant’s OWCP application.
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On August 30, 2011, Person A sent Complainant an OWCP Reference Guide. Complainant
subsequently filed an OWCP claim.

On September 9, 2011, Complainant was issued a notice of the expiration of her term
appointment. The notice stated that the effective date of expiration would be September 30,
2011.

Complainant filed an EEO complaint dated December 27, 2011, alleging that the Agency
discriminated against her on the basis of disability when:

1. Complainant requested that the Agency provide documentation regarding her
Continuation of Pay (COP) and Office of Workers’ Compensation Program
(OWCP) applications on July 27, 2011, and the documents were not provided until
August 30, 2011.

2. Complainant’s term appointment as a GS-9, Veterans Claims Examiner was
terminated, effective September 30, 2011.

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). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), 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.

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”).
At the outset, we note that Complainant does not challenge the definition of the complaint.
Moreover, we find the record in the present case was adequately developed.

To prevail in a discrimination claim of disparate treatment without direct evidence of
discriminatory intent, Complainant must satisfy the three-part evidentiary scheme fashioned by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the
Complainant must make a prima facie claim of discrimination showing complainant was: (1) a
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member of a protected class; (2) subject to an adverse employment action concerning a term,
condition, or privilege of employment; and (3) treated differently than similarly situated
employees outside his protected class. See e.g. *** v. Dep’t of the Treasury, EEOC Appeal
No. 0120120091 (May 3, 2014), Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419
(Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002).
Upon making a prima facie showing, the burden then shifts to the Agency to show that it had a
legitimate, nondiscriminatory reason for the employment action. See Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 252 (1981). Finally, the burden shifts back to the
Complainant who bears the ultimate burden of proving that the nondiscriminatory reason
articulated by the Agency was in fact pretext for discriminatory. See id.

at 253-4.
In the present case, the Agency articulated legitimate, nondiscriminatory reason for its actions.
With regard to issue (1), the record reveals that Complainant was given the paperwork for her
COP claim on July 18, 2011, and she subsequently signed the paperwork the same day
requesting COP. Complainant immediately became eligible for COP benefits for 45 days
starting on July 19, 2011. In her affidavit, Person A noted she was out of the office on
training from July 19 – 22, 2011. On July 27, 2011, Person A sent Complainant an electronic
mail message asking whether Complainant wanted to submit an OWCP claim. Complainant
responded with uncertainty as to whether she would file an OWCP claim and asked Person A
to send her any information that would help her make a more informed decision. Complainant
and Person A continued to communicate via electronic mail regarding Complainant’s claim
through August 2011. On August 30, 2011, Complainant contacted Person A to seek
clarification whether the 45 days of COP was cumulative and requested the procedures in
writing for filing an OWCP claim. Person A responded the same day informing Complainant
that COP runs for 45 days beginning the day after the incident and sent Complainant an OWCP
Reference Guide which detailed the procedure for filing an OWCP claim. Complainant
subsequently filed an OWCP claim. Person A stated Complainant’s OWCP claim was denied
by the Department of Labor in December 2011, because Complainant did not establish that the
claimed medical condition was related to work related events.

With regard to Complainant’s claim that Person A failed to provide her with documentation of
how to file an OWCP claim, Person A admitted that she could have been more proactive in
providing Complainant with the OWCP Guide. However, Person A stated that the OWCP
Guide was not sent earlier based on a high volume of work at the time. Person A noted that
due to her workload and other HR duties outside of being the Workers’ Compensation
Program Manager, the OWCP Guide was often not sent in a timely manner. Upon review, the
record reveals that Person A assisted Complainant in filling out the paperwork for her COP
claim, that the form Complainant signed to initiate COP clearly advised Complainant that the
COP would only last for 45 days, and that Person A followed up with Complainant on July 27,
2011, to inquire whether Complainant wanted to file an OWCP claim. Moreover, when
Complainant asked for further clarification on how to file an OWCP claim on August 30,
2011, Person A sent her the OWCP Reference Guide the same day. In the present case,
Complainant failed to show that the Agency’s actions were based on discriminatory animus.

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With regard to issue (2), Complainant was hired under a term appointment that commenced on
February 17, 2009, and expired on September 30, 2011. The term appointment agreement
stated that the term employment will automatically end upon expiration of the appointment
unless the employee is reappointed for another term. The record reveals that VCEs had
production standards that required them to complete a certain number of claims per month.

Beginning in August 2010, Complainant began to have problems meeting production standards.
On September 10, 2010, Complainant received an informal counseling regarding her
production. In March 2011, Complainant received a formal written counseling informing her
that her productivity was unacceptable. Thereafter, on June 9, 2011, Person B placed
Complainant on a Performance Improvement Plan (PIP). The PIP stated that Complainant
must successfully pass the critical element of productivity in either June 2011, July 2011, or
August 2011. The PIP noted Complainant would be assigned a Senior VCE of her choice for
one-on-one guidance and clarification on processing procedures. The PIP stated Complainant’s
coach would be available to assist her in areas in which she needed to improve and would meet
with Complainant to provide feedback and guidance to assist her in improving her performance
to a successful level. On July 8, 2011, the Agency provided a PIP – Status Update noting that
Complainant’s performance in June did not meet the performance standards and stating that she
would remain on the PIP. On August 9, 2011, the Agency issued another PIP – Status Update
noting that Complainant’s performance in July did not meet the performance standards and
stating she would remain on the PIP. On August 19, 2011, Complainant’s term appointment
was extended through August 31, 2011. Complainant was notified that if she successfully
completed her PIP, her term appointment would be extended through March 31, 2012.
Complainant was informed that if she did not successfully complete her PIP, her term
appointment would expire on September 30, 3011. On September 9, 2011, the Agency issued
a Memorandum notifying Complainant that her term appointment would expire effective
September 30, 2011. The record reveals that other VCEs have also had their term
appointments expire as a result of poor performance. Upon review, we find Complainant
failed to show that the Agency’s decision to let Complainant’s term appointment expire was a
pretext for discrimination.

CONCLUSION
Accordingly, the Agency’s final decision is AFFIRMED.

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:

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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
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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
August 1, 2014