0120133178
05-01-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120133178
Hearing No. 560-2011-00207X
Agency No. 200303312010104312
DECISION
On August 7, 2013, Complainant filed an appeal from the Agency's July 23, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant established by the preponderance of the evidence that she was discriminated against and subjected to reprisal as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative, GS-10, at the Saint Louis Regional Office in Saint Louis, Missouri. On November 19, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), her sex, and age when:
1. On July 21,2010, Service Center Manager, denied her certification training; and
2. On July 27, 2010, she was found not qualified for the position of Rating Veterans Service Representative, GS-0996-11/12, VAN MPA 394-38-456.
Complainant also alleged that the Agency discriminated against her on the bases of race (African-American), sex, age, and reprisal when:
3. On September 14, 2010, SCM issued her a written reprimand; and
4. On October 22, 2010, she was found not qualified for the position of Supervisory Veterans Service Representative (Assistant Coach), GS-0996-11/12, VAN MPA 394-11-331-1-1.
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). 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).
In the Agency's decision, the Agency found that Complainant established a prima facie case of discrimination based on sex, race, age, and reprisal. The Agency further found that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
With regard to claim 1, Complainant testified that Veteran Service Representatives (VSR) must take certification training and testing in order to be promoted to GS-11. She alleged that the former Veterans Service Center Manager (VSCM1) denied her the certification training but authorized a waiver for a younger White and a younger Black employee. She stated the waiver was for their production and quality standards. According to the Agency, Complainant was unable to take the training because she did not meet the time in grade requirement to be eligible. VSCM1 and Complainant's supervisor at the time the complaint was filed, Veterans Service Center Manager (VSCM2), testified that they were not involved in the determining Complainant's eligibility to receive certification training/testing.
A Human Resources Specialist, (HRS) testified that the determination regarding time in grade is made by Human Resources, and whether the employee was meeting the performance standards was determined by the employee's immediate supervisor. The criteria of time in grade and meeting performance standards are eligibility requirements that must be met in order to take the certification test. The test dates were scheduled for February 10, 2010, and, tentatively, August 4, 2010. A VSR may sit for certification 90 days prior to the earliest date they achieve their one-year time-in grade at the GS-10 level. They also must be meeting the local performance standards. HRS stated that to her knowledge an employee would not be allowed to sit for certification training until they were close to fifty-two weeks as a GS-10. She noted that, as of July 2010, Complainant, who had only been promoted to GS-10 in April, was therefore not eligible for certification training.
Complainant's supervisor, Supervisory Veterans Service Representative (S1) submitted a memorandum dated July 16, 2010 stating that Complainant met the performance standards. The memorandum also indicated that Complainant's time in grade date was April 11, 2010, which meant that she was eligible for the certification testing/training no earlier than January 2011.1
Complainant identified a similarly situated individual who she maintained was treated more favorably, however, the Agency found that this individual was promoted to GS-10 on August 16, 2009, and as such, was eligible to take the certification training due to her time in grade date of May 2010.
With regard to the Complainant's allegation that a comparative employee was not meeting production standards but was allowed to take certification training/testing, VSCM1 explained that "we did not want to negatively impact our employees' opportunity to sit for certification so I think that we took the implementation of the new performance standards as a grounds for possible mitigation if they [did not] met the required quality standards."2
With regard to claims 2 and 4, the record showed that the applications for in-house positions were submitted to the Human Resources Center in Detroit, Michigan. VSCM1 and VSCM2 testified that they were not involved in the qualification process for the positions at issue. HRS testified that she was responsible for processing the Merit Promotion documentation for the positions at issue. HRS testified that Complainant did not meet the one year specialized experience and time in grade at the GS-10 level to qualify for referral and consideration. The record revealed that the applicants referred for consideration met the time in grade requirement for referral and consideration.
With regard to claim 3, VSCM1 and VSCM2 testified that Complainant's actions toward S1 were the determining factor in issuing her a written reprimand. According to S1, the incidents occurred on August 16 and 25, 2010. Complainant's tone was extremely loud, angry and condescending. She also stated that Complainant's manner of speech was perceived as an attempt to belittle S1's character and authority as the supervisor of the Appeals Team. She stated Complainant was unhappy with decisions S1 made and in a loud tone questioned S1's ability to make good decisions. She stated the Complainant also attempted to undermine her authority and leave the impression that she was an incompetent supervisor. She stated the manner in which the Complainant spoke was very humiliating and embarrassing and made a very uncomfortable situation for those around. When asked why she involved upper management S1 stated, "I involved upper level management because I perceived [Complainant's] actions to be serious insubordination and I sought guidance from my supervisor on what, if anything, I needed to do about the behavior displayed by [her]."
The Agency provided a copy of the disciplinary file that concerned this incident and the supporting documentation/evidence for management's action. S1 stated the Complainant was issued a reprimand based on disrespectful conduct, use of insulting, abusive, or obscene language to or about other personnel, patients or visitors.
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination with regard to any of her claims. Specifically, the Agency found that Complainant failed to offer any evidence to show that the Agency's proffered reasons were not worthy of credence. As such, the Agency found that Complainant failed to establish that she was discriminated against or retaliated against as alleged. Complainant appealed the Agency's final decision to the Commission.
Complainant did not provide any arguments on appeal. The Agency argues that the Commission should affirm the Agency's final decision.
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.
Here, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as stated above. Further, we find that Complainant failed to offer any evidence to support her assertion that the Agency was motivated by discriminatory or retaliatory animus. Further, there is no evidence in the record to establish that the Agency's proffered reasons are not worthy of credence. As such, we find that Complainant failed to demonstrate that she was discriminated against or retaliated against as alleged.
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 that Complainant did not establish by a preponderance of the evidence that she was discriminated against.
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
___5/1/15_______________
Date
1 This was 90 days prior to her one year in service date at the GS-10 grade.
2 [0]This was a waiver of the performance standard requirement, not the time in grade requirement. The record does not indicate that the Agency waived the time in grade requirement for anyone and, we note, Complainant does not allege that it did.
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0120133178
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120133178