0320180034
05-15-2018
Daniell H.,1 Petitioner, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Daniell H.,1
Petitioner,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320180034
MSPB No. PH0752170171I2
DECISION
On February 23, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of 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 CONCUR with the MSPB's Final Order.
BACKGROUND
Petitioner worked as a Nursing Assistant at the Veterans Affairs (VA) Medical Center in Martinsburg, West Virginia. Petitioner alleged that the Agency discriminated against her on the basis of race (African American) when, by notice dated January 6, 2017, the Agency informed her that it proposed to remove her from federal employment for one narrative specification of patient abuse and two narrative specifications of conduct unbecoming of a federal employee. The charges were based on incidents reported having occurred on January 30, 2016. On January 23, 2016, the deciding official sustained the proposed removal which became effective February 6, 2017.
The record reflects that on January 30, 2016, the on-duty Charge Nurse (CN) was alerted that a patient (P1) was complaining of chest pain. CN entered P1's room and found her sitting on the toilet in tears requesting a looser fitting bra. At this time Petitioner and another Nursing Assistant were observed by a CN continuously speaking to a patient (P1) with raised voices while P1 was crying. CN advised both Nursing Assistants that she would assume the care of P1, and asked that Petitioner locate and bring a piece of medical equipment back to the room. Petitioner subsequently began raising her voice to CN stating "You calm down and leave me alone", and then said "let me leave before I get written up". Each of these actions took place inside P1's room.
A hearing was conducted on December 18, 2017. An MSPB Administrative Judge (AJ) issued an initial decision, dated January 19, 2018, sustaining Petitioner's removal. The AJ found that the Agency proved its charges of patient abuse and conduct unbecoming of a federal employee, and that the decision to remove Petitioner fell within the tolerable limits of reasonableness. Additionally, the AJ found that Petitioner was unable to establish her affirmative defense because she failed to show by preponderant evidence that the Agency's decision to remove her was motivated by discriminatory animus, or that she was treated differently than employees outside of her protected category. Additionally, the AJ found that the Agency presented legitimate non-discriminatory reasons for the removal. Petitioner subsequently filed the instant petition.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
The Commission finds that the MSPB's decision in the instant matter constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole. Upon review of the record, the Commission finds that even assuming, arguendo, that Petitioner established a prima facie case of discrimination based on race, the Agency provided legitimate, non-discriminatory reasons for her removal - namely that she was abusive toward a patient, and she exhibited conduct unbecoming of a federal employee.
The witness testimony presented by Petitioner to support her contention that she was improperly removed was not helpful to her as it was clear from the testimony that neither actually witnessed the events. Regarding Petitioner's position that she was treated differently than the other Nursing Assistant who was outside her protected category with respect to these events, we agree that the comparison is improper because the comparator employee resigned before being removed. In sum, Petitioner presented no persuasive evidence of discriminatory animus surrounding the removal. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to remove her was based on discriminatory animus.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to concur with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
__5/15/18________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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