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

Equal Employment Opportunity Commission

Mar 11, 2015

0120123428 (E.E.O.C. Mar. 11, 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. 0120123428

Hearing No. 430-2011-00172X

Agency No. 2004-0558-2010101126

DECISION
On August 31, 2012, Complainant filed an appeal from the Agency’s August 6, 2012 final
order 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 order.

BACKGROUND
Complainant worked as a Support Assistant at the Agency’s medical center in Raleigh, North
Carolina. In an EEO complaint filed on March 6, 2010, and amended on September 15, 2010,
Complainant alleged that the Nurse Manager, her immediate supervisor (S1) discriminated
against her on the bases of race (African-American) and in reprisal for previous EEO activity
in connection with the following incidents:

A. S1 issued Complainant an admonishment February 10, 2010.

B. Between November 2009 and February 2010, S1 subjected Complainant to a hostile
work environment by:

1. preventing Complainant from having a union representative present at a meeting
held on November 5, 2009;

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2. making a racially insensitive comment at a staff meeting on November 25,
2009;

3. accusing Complainant of not securing contact information from patients and
holding her hands in front of Complainant’s face at a meeting between them on
December 23, 2009;

4. sending one of Complainant’s co-workers to her home on December 24, 2009,
her day off, to warn her not to “mess with the Nurse Manager;” and

5. issuing Complainant the letter of admonishment on February 10, 2010.

C. On July 9, 2010, S1 issued Complainant notice of a proposed 3-day suspension.

Complainant averred that on November 5, 2009, at a meeting in S1’s office, S1 did not allow
her to have a union representative present. She also testified that S1 would often give her only
15 minutes advanced notice, so that she would not have the time to ask for a union
representative. S1 responded that she recalled neither the meeting itself nor the substance of
the meeting, but that her usual practice was to give staff members with whom she wished to
meet 24 hours notice in order to give them the opportunity to have a union representative
present. She disputed Complainant’s assertion that she only gave 15 minutes advanced notice.
A Human Resources Specialist who advised S1 on disciplinary actions averred that an
employee may request the presence of a union representative if she believes that the meeting
will involve disciplinary action, but not routine work assignments, and that if the employee is
not sure, she would need to ask the supervisor about the nature of the meeting. Investigative
Report (IR) 324-325, 369-71.

Complainant testified that at a staff meeting on November 25, 2009, S1 told the assembled
clerks, “if you people did your jobs, we wouldn’t be having this conversation,” and “you
people are an embarrassment. Complainant took offense to the remark, characterizing it as
racially insensitive. Another Support Assistant who was at the meeting with Complainant took
it the same way. S1 denied that she was referring to African-Americans when she made the
remark. She testified that she was referencing the fact that she was getting numerous
complaints from staff and patients about the lack of customer service from the Support
Assistants. The Human Resources Specialist testified that when she first heard the remark, she
thought that S1 was referring to the Support Assistants. IR 323-324, 371; Hearing Transcript
(HT) 23-24.

Complainant stated that on December 23, 2009, S1 accused her of not securing contact
information from veterans and pointing her fingers in Complainant’s face when their
conversation became heated. S1 responded that she called Complainant into her office to
discuss a number of performance-related problems, including failure to secure vital
demographic information from patients and poor customer service. In an email to S1 dated
December 3, 2009, the Charge Nurse reported that she had listened to Complainant check in
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five patients, and that in each case, she failed to verify the patient’s address and telephone
number. In a report of contact dated December 15, 2009, S1 indicated that she received a
voicemail message from a patient stating that Complainant had treated him very rudely. S1
testified that when she met with Complainant and tried to discuss these performance problems
with her, Complainant shouted at her, telling S1 to shut up and to get her hands out of her
face. Complainant then declared the meeting over and walked out. The Union Representative,
who was on conference call, testified that she heard Complainant tell S1 to shut up. As for
S1’s hand gesture, S1 testified that she was merely signaling Complainant to stop talking, and
that the two of them were separated by a desk that was four feet wide, so that she could not
have been putting her hand close to Complainant’s face, as Complainant alleged. IR 201, 204,
209, 211, 321-22, 326-27; HT 18.

Complainant next testified that on December 24, 2009, her day off, one of her co-workers
approached her as she was unloading packages from the trunk of her car and warned her that
S1 was out to get her, and that Complainant should “not mess with S1.” The co-worker told a
different story. He stated that Complainant lived across the parking lot from the clinic where
they worked, and that he was on his lunch break and saw her unloading packages, so he
approached her, wished her a Merry Christmas, and struck up a conversation with her. He did
not recall the exact words of the conversation. S1 denied that she sent the co-worker to
Complainant’s house, and denied that she had any knowledge of the matter at all. IR 158-59,
203, 316, 327-28.

On January 11, 2010, S1 proposed to admonish Complainant for her behavior in S1’s office on
December 23, 2009. The charges specified in the memorandum included disrespectful conduct
toward a supervisor and disrespectful conduct toward a patient. The admonishment was
sustained on February 10, 2010, by the Associate Chief Nurse, Complainant’s second-line
supervisor. The Human Resources Specialist averred that she advised S1 on the matter and
that S1 had followed all of the proper procedures. IR 184-90, 202, 366-67.

On July 9, 2010, the Associate Chief Nurse for Ambulatory Care issued Complainant a notice
of proposed 3-day suspension for getting into a loud verbal argument with a co-worker within
full view of patients waiting for service. Complainant admitted that she was the one who
started the argument. The proposal made note of the fact that Complainant had received
written counseling in June 2009, for a similar occurrence. The proposed suspension was
sustained by the Ambulatory Care Chief Nurse on September 21, 2010, but was reduced to one
day. IR 196-98, 220-21, 327-30, 374-76.

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, and the AJ held a hearing
on May 10, 2012, and issued a decision on June 29, 2012. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged

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STANDARD OF REVIEW
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
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.

ANALYSIS AND FINDINGS
With respect to Claims (A) and (C), the Commission cannot second-guess an Agency’s
decisions involving personnel unless there is evidence of a discriminatory motivation on the
part of the officials responsible for those decisions. See Texas Department of Community.
Affairs v. Burdine, 450 U.S. 248, 259 (1981). Consequently, in order prevail on her claims,
Complainant would have to prove that S1 and the Associate Chief Nurse for Ambulatory Care
were motivated by unlawful considerations of her race and previous EEO activity when they
issued the admonishment and the suspension, respectively. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000). Such evidence could take the form of slurs or other
discriminatory statements, past personal treatment, comparative data, statistical data showing
outsized imbalances along the lines of race, unequal applications of Agency policy, or
deviations from standard procedures without explanation or justification. See Hovey v.
Department of Housing & Urban Development

, EEOC Appeal No. 01973965, (Aug. 31,
2000).
The only evidence of a racial slur that Complainant presents is S1’s reference to the Support
Assistants on her staff as “you people.” However, the Human Resources Specialist
corroborated S1’s affidavit testimony that she was referring to her staff when she made the
remark, not to African-Americans at large. There is no evidence from which one could
reasonably infer that S1 was making a racial remark. As to the admonishment, S1’s version of
the events that took place in her office on December 23, 2009, was corroborated by the Union
Representative who had been participating in the meeting by telephone. Regarding the
suspension, Complainant herself admitted that she was the one who started the argument with
her co-worker. These disciplinary actions find support in the record not only from the
affidavits of S1 and the Human Resources Specialist, but from emails, reports of contact, and
the disciplinary memoranda themselves. Complainant has not presented any statements from
other witnesses or documents which contradict the explanations provided by S1 and the
Associate Chief Nurse for Ambulatory Care for their actions, or which call their veracity into
question. We therefore find, as did the AJ, that Complainant failed to prove the existence of
an unlawful motive on the part of S1 and the Associate Chief Nurse for Ambulatory Care when
they took the disciplinary actions at issue in claims (A) and (C). Moreover, since the incident
in claim (B)(5) is the same admonishment at issue in Claim (A), Complainant’s failure to prove
the existence of a discriminatory or retaliatory motive on the part of S1 within the context of
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a disparate treatment analysis precludes a finding of unlawful harassment with respect to that
admonishment. See Oakley v. United States Postal Service

, EEOC Appeal No. 01982923
(Sept. 21, 2000). We now address the remaining incidents comprising claim (B).
To prevail on her claim of discriminatory harassment, Complainant would have to prove, again
by substantial evidence, that because of her race and previous EEO activity, she was subjected
to conduct so severe or pervasive that a reasonable person in her position would have
considered it hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993);
Wibstad v. U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). Only if
Complainant satisfies her burden of proof with respect to both elements, hostility and motive,
will the question of Agency liability present itself. Complainant v. Department of
Transportation (Federal Aviation Administration)

, EEOC Appeal No. 0120131581 (July 18,
2014).
With respect to the meeting that occurred between Complainant and S1 on November 5, 2009,
Complainant has not shown that S1 in any way prevented her from having a union
representative participate in their meeting, or that having only fifteen minutes notice prevented
her from finding a union representative. As to the staff meeting that took place on November
24, 3009, we previously found that S1 was not referring to African Americans when she
addressed her Support Assistants as “you people.” Complainant’s behavior and performance
deficiencies have been thoroughly documented in connection with the meeting that occurred on
December 23, 2009. Finally, Complainant has not presented any evidence tending to show
that S1 sent a co-worker to Complainant’s house on her day off to threaten her or that S1 was
even aware that the co-worker had made the visit. Consequently, we find that Complainant
failed to prove the existence of the requisite intent on the part of S1 necessary to support a
finding of discriminatory harassment.

Finally, we note that the AJ had accorded the affidavit testimony of S1 great weight, despite
the fact that she did not appear at the hearing. However, the AJ did not base her finding of no
discrimination on her observations of S1’s demeanor and credibility. We find that substantial
evidence in the record supports the AJ’s decision.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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
March 11, 2015