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

Equal Employment Opportunity Commission

May 28, 2015

01-2013-2517-0500 (E.E.O.C. May. 28, 2015)

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. 0120132517

Hearing No. 450-2012-00298X

Agency No. 2003-0549-2012101684

DECISION
Complainant filed an appeal from the Agency’s final order dated May 23, 2013, finding no
discrimination with regard to his 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.
For the following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND
In his complaint, dated February 25, 2012, Complainant alleged discrimination based on race
(Black) and national origin (Nigerian) when on January 3, 2012, he was served a notice of
termination from his position as a GS-4 License Vocational Nurse (LVN) during his
probationary period, with an effective date of January 13, 2012. Upon completion of the
investigation of the complaint, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). After a hearing, the AJ, on May 1,
2013, issued a decision finding no discrimination. The Agency’s final order implemented the
AJ’s decision.

ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
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finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).
In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged termination. The record indicates that on August 28, 2011,
Complainant was hired by the Agency as a GS-4 LVN at the Agency’s Bonham, Texas,
Veterans Affairs facility, subject to completion of a one year probationary/trial period.
Complainant’s supervisor stated that on October 5, 2011, she met with Complainant and gave
verbal counseling regarding his poor performance issues, but noticing no improvement in his
performance, she recommended his removal. The supervisor indicated that she also received
several reports from Complainant’s coworkers of unacceptable levels of performance in
carrying out his position responsibilities. The Agency’s Human Resources Chief indicated that
based on the supervisor’s request, Complainant was terminated due to his unacceptable
performance, i.e., his inattentiveness to duties, failure to administer medications, not being in
his work station, not responding to patient’s requests for calls, not empathetic to patients, and
not cooperative with his coworkers. The Chief also indicated that due to Complainant’s poor
performance, other staff members had to take over his duties.

The AJ stated that the supervisor received numerous complaints from her staff indicating
Complainant’s poor work performance, i.e., not properly taking care of a patient, not
responding to a patient’s call, and abusing his patient. In addition, the AJ noted that despite
Complainant’s claim, the Nurse Educator, identified by Complainant, denied ever making any
racial remarks during training. The AJ further noted that Complainant acknowledged that he
did not report the foregoing incident to his supervisor or his manager at the relevant time
period. Based on the foregoing, we agree with the AJ that Complainant failed to show by a
preponderance of the evidence that the Agency’s proffered reasons for his termination were
pretextual. Furthermore, we agree with the AJ that Complainant failed to show that he was
treated less favorably than a similarly situated employee under similar circumstances. Upon
review, we find that the AJ’s factual findings of no discriminatory intent are supported by
substantial evidence in the record.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order finding of no discrimination is AFFIRMED because the
AJ’s decision is supported by substantial evidence.

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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
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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
May 28, 2015