0120122522
11-06-2012
Felicia Steptoe, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Felicia Steptoe,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122522
Hearing No. 430-2011-00216X
Agency No. 2004-0659-2010104138
DECISION
On May 18, 2012, Complainant filed an appeal from the Agency's April 18, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant failed to show that she was discriminated against as alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated against on the bases of race (Black) and disability when she was terminated from her position as a Licensed Practical Nurse during her probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse (LPN) at the Agency's Medical Center in Asherville, North Carolina. Complainant initially worked at the facility in a temporary position but was given a permanent appointment on October 25, 2009, which was subject to a one year probationary period. While on the job, in December 2009, and again in January 2010, Complainant injured her right elbow. In April 2010, she injured her right shoulder and right wrist while at work. As a result of her injuries Complainant was restricted to limited duty and was prescribed pain medication which included Percocet.
The facility used the Omnicell medication dispensing system. To obtain medication, nurses were required to input their user ID and passwords. After the medication was administered to the patient, an entry was to be made into the BCMA system. If some or all of the medication was not given to the patient it was to be returned as "wasted." If the medication was still in its original packaging, it was to be returned to the Omnicell cabinet. If the medication was wasted it was to be noted in the Omnicell system. On April 7, 2010, while giving a narcotic to two patients, Complainant mistakenly put one of the patient's pills in her pocket. She immediately notified management about the pills and returned to the medical facility from her home to return the medication.
Thereafter, management initiated an investigation regarding Complainant's use of the Omnicell medication dispensing system. Six instances involving the misuse of narcotics were noted in the investigation. Complainant was questioned regarding these instances. Management found her responses to be less than adequate. Therefore, on July 16, 2010, the Human Resources Chief issued a memorandum notifying Complainant that she was being terminated for several performance deficiencies including errors in medication dispensing.
On September 8, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and disability (impairment of arms and shoulders) when on July 16, 2010, her employment was terminated during her probationary period.
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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on April 5, 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. Specifically, the AJ found that Complainant failed to establish a prima facie case of discrimination because she failed to show that similarly situated employees not of her protected bases were treated more favorably.
The AJ noted that Complainant attempted to show pretext by asserting that two white Registered Nurses (RNs) had unsatisfactory performance incidents and yet they were not terminated. The AJ found that the nurses were not similarly situated because they were RNs and Complainant was a probationary LPN. More importantly the AJ found that Complainant failed to show what the RN's discrepancies were. The AJ assumed that Complainant established a prima facie case of disability discrimination but found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was terminated from her position during her probationary period for unsatisfactory performance, mostly related to discrepancies in the administration of narcotics. The AJ found that Complainant failed to show that the Agency's articulated reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the decision to terminate her occurred after she filed a Workers Compensation claim. Further, Complainant maintained that she had numerous incidents while employed at the Agency which suggested that her supervisor harbored animus based on her race. These incidents included: discouraging her from taking classes because they may have interfered with her job but then she overheard this same supervisor encouraging a white probationary employee to continue his education; when the supervisor told Complainant to take off the 18th because it was Martin Luther King Jr. Day, and she knew that Complainant did not like to work; the denial of Complainant's request to have all of her assignments for the prior week via email while another worker was allowed to review the assignment book; and no one was disciplined when Complainant reported on June 10 and 13, 2010, that medication was left in patient's rooms.
Further, Complainant maintains that a summary judgment decision was unwarranted. She argues that the comparators should have been accepted as similarly situated. She explains that they were more experienced and presumably better trained, had committed more egregious errors but yet suffered no repercussions. Moreover, Complainant maintains that as a probationary employee she should have been offered training instead of termination after she candidly answered all of management's questions.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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"). We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that the AJ correctly issued a decision without a hearing because there are no material facts at issue in this case. Further, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was terminated during her probationary period for unsatisfactory performance, mostly related to discrepancies in the administration of narcotics.
Complainant continues to argue that the RN's should be accepted as comparators, however, in order to be similarly situated comparators must be in identical positions and have the same supervisor. Here, this is not the case. Moreover, we find that Complainant failed to show that any other probationary employee not of her protected bases who committed the same offense was treated more favorably than she was. We are also not persuaded by Complainant's contentions on appeal and find no persuasive evidence of pretext. Therefore, we find that Complainant's pretext argument fails. The Commission has long held where a Complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Coe v. Department of Homeland Security, EEOC Appeal No. 0120091442 (October 7, 2011); Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). Accordingly, we find that Complainant has failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination or that discriminatory animus was involved with the decision to terminate her.
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 order which found that Complainant failed to demonstrate that she was discriminated against as alleged.
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
__11/6/12________________
Date
2
0120122522
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122522