Debbi V.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 9, 2016

0120140684 (E.E.O.C. Nov. 9, 2016)

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

Debbi V.,1
Complainant,

v.

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

Appeal No. 0120140684

Hearing No. 430-2011-00284X

Agency No. 2001-0544-2010104013

DECISION

Complainant filed an appeal from the Agency’s November 26, 2013, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it for
de novo review. For the following reasons, the Commission AFFIRMS the Agency’s final
order.

BACKGROUND

Complainant worked as a Nurse at the Agency’s Medical Center in Columbia, South Carolina.
On October 22, 2010, Complainant filed an EEO complaint in which she alleged that her
immediate supervisor, the Nurse Manager (S1) and other officials subjected her to disparate
treatment and harassed her because of her race (African-American), religion (Muslim),
disability (Major Depression), and in reprisal for prior protected EEO activity. She identified
a number of incidents, which are discussed below.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Complainant identified several occurrences between herself and S1 regarding her use of leave.
On March 25, 2010, S1 issued Complainant a written counseling memorandum concerning
Complainant’s use of excessive unscheduled leave. Investigative Report (IR) 257, 336-38,
343. The following day, S1 issued Complainant a notice that she would be charged with being
absent without official leave (AWOL) on March 23 and 24. Specifically, S1 noted that, rather
than follow standard leave policy and request leave in advance, Complainant had merely left
S1 a voice mail message after she failed to report for duty as scheduled. IR 257, 300-01, 303.

On April 16, 2010, S1 issued Complainant a written admonishment regarding her excessive
use of unscheduled leave. In support of the admonishment, S1 noted Complainant’s failure to
follow the rules for scheduling leave on March 23 and 24. She also noted Complainant’s 104
hours of unscheduled leave used between October 2009 and March 2010 as well as another
AWOL incident that occurred on January 20, 2010, in which Complainant had taken leave
without asking for it in advance. Complainant’s second-level supervisor, the Associate
Executive Nurse (S2), concurred in the action. Although the admonishment was sustained on
June 11, 2010, it was later rescinded by Complainant’s third-level supervisor, the Chief Nurse
(S3). IR 221-22, 237, 254-56, 284, 299, 304, 306-07.

Next, Complainant alleged that on April 26, 2010, S1 gave Complainant an overall annual
proficiency rating of “satisfactory” in her performance appraisal for the period between
December 2008 and December 2009. The appraisal had thirteen performance elements divided
into four areas. Individual performance elements could be rated as “met,” “exceeds,” and
“not met.” S1 had rated Complainant as having met the performance standard for all thirteen
elements and had given her an overall rating of satisfactory. IR 339-41. S1 explained that
Complainant had been absent for work for much of the rating period, having returned from
active duty in April 2009 and having been on leave for 279 hours between August and
December of 2009. S1 averred that whenever people are absent, the default assumption is that
they would have performed satisfactorily, and that Complainant did not demonstrate that she
had earned a rating higher than satisfactory. IR 239. S2 concurred, stating that a rating of
satisfactory was not a negative rating. IR 267-68.

Complainant also alleged that on May 10, 2010, S1 denied Complainant’s request for leave.
According to S1, Complainant had submitted a request on April 26, 2010, to take leave
between May 7 and May 17. S1 averred that she denied Complainant’s request because the
office was short-staffed and that she needed Complainant to take care of patients, as she was
required to do. Complainant’s time and attendance records for 2010 showed that she took eight
hours of sick leave on Monday, May 10, 2010. IR 242, 321-23, 337.

Finally, Complainant alleged that between June and December of 2010, S1, S2, and S3
ignored her request for a reasonable accommodation. On June 1, 2010, Complainant sent a
letter to the EEO Manager to request a reasonable accommodation in the form of being
reassigned to another work environment due to stress. IR 311. After not hearing back from
the EEO Manager, she submitted a written request for a reasonable accommodation on July 10,
2010, in which she identified her impairment as depression that affected her major life
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activities of sleeping, performing manual tasks, working, and interacting with others, and
reiterated her request to be reassigned to a less stressful work environment. IR 182, 191-93,
320. On August 11, 2010, the EEO Manager responded that she needed supporting medical
documentation from Complainant’s treating physician, and not from her application in support
of her compensation claim before the Department of Veterans Affairs. IR 312-16. On
October 15, 2010, the EEO Manager notified Complainant that the Reasonable
Accommodation Committee was still in the process of consulting with Complainant’s health
care provider about the best ways to accommodate her. IR 319. Complainant averred that on
December 2, 2010, she was called into S3’s office and told that her accommodation would be
granted. IR 193.

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Although Complainant timely requested a hearing, the AJ assigned to the case determined sua
sponte that the complaint did not warrant a hearing and over Complainant's objections, issued
a summary judgment on September 27, 2012. When the Agency failed to issue a final order
within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s
final action pursuant to 29 C.F.R. § 1614.109(i).

ANALYSIS AND FINDINGS

In order to warrant a hearing on her claims of disparate treatment and discriminatory
harassment, Complainant would have to present sufficient evidence to raise a genuine issue of
material fact as to whether S1 or any other official named in the complaint was motivated by
unlawful considerations of her race, religion, disability, or previous EEO activity when the
Agency took the actions described in the complaint. See 29 C.F.R. § 1614.109(g); Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Harris v. Forklift Systems,
Inc., 510 U.S. 17, 22 (1993). If Complainant fails to raise a genuine issue of material fact as
to the existence of discriminatory intent, no further inquiry would be necessary as to whether
the incidents complained of rise to the level of harassment or constitute separate acts of
discrimination under disparate treatment theory. Nicki D. v. Department of Veterans Affairs,
EEOC Appeal No. 0120133247 (October 15, 2015).

In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact as to motive by presenting evidence tending to show that the reasons articulated by S1 for
her actions were pretexts, i.e., not the real reason but rather a cover for discrimination. St.
Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by
showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered
legitimate reasons for its action that a reasonable fact finder could rationally find them
unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802
(Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May
30, 2008).

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As to the letter of counseling, the AWOL charge, and the admonishment, S1 averred that
excessive use of leave had been a chronic issue with Complainant, and pointed to
Complainant’s time and attendance records that documented her leave usage. Regarding
Complainant’s performance appraisal, S1 averred that Complainant had been absent from duty
during most of the rating period, that the default procedure was to give employees with
extended absences a perfunctory rating of satisfactory, and that Complainant’s performance
while she was at work did not merit a rating beyond satisfactory. With respect to S1’s denial
of Complainant’s leave request in May 2010, S1 averred that she could not grant
Complainant’s leave request without compromising patient care. Finally, Complainant herself
admitted that S3 had granted her request for a reasonable accommodation after extensive
discussions with her health care providers as to how to best accommodate her. Complainant
has not submitted any sworn statements from other witnesses or documents that contradict the
explanations provided by S1, S2, or S3, or which call their veracity into question. We
therefore find, as did the AJ, that no genuine issue of material fact exists with respect to
motivation of S1, S2, or S3 in connection with the incidents at issue in this complaint, and that
Complainant did not establish that she was subjected to discrimination as alleged.

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 (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
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5
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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

November 9, 2016
Date