0120142483
01-21-2016
Glinda M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Glinda M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142483
Hearing No. 430-2013-00241X
Agency No. 200406592012103534
DECISION
On June 13, 2014, Complainant filed an appeal from the Agency's May 15, 2014, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chemo-Therapist IV Technician at the Agency's Medical Center facility in Salisbury, North Carolina.
On August 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (55) when:
1. On May 11, 2012, Complainant's supervisor (S: 38 years old) issued Complainant a Letter of Written Counseling; and
2. On June 15, 2012, the Chief of Pharmacy (CP: 59 years old) issued Complainant a Letter of Termination, effective June 29, 2012, resulting in Complainant's employment ending on that date.
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 Equal Employment Opportunity Commission 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 March 31, 2014. Specifically, the AJ found that Agency officials articulated legitimate nondiscriminatory reasons for their actions when S averred that the written counseling was issued because Complainant engaged in inappropriate conduct and her technical skills were not up to standard, and that the termination notice was issued because of Complainant's failure to follow procedures, inappropriate conduct and her argumentative attitude towards Pharmacists. The AJ further found that Complainant failed to establish that the Agency's articulated reasons were a pretext to mask discrimination. 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.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination.
With regard to the letter of counseling, the letter itself provided the Agency's legitimate non-discriminatory reason for the Agency's action when it stated:
You are being given this written counseling to address a behavior pattern that you have displayed. I have received multiple reports from your coworkers that describe a routinely defensive and argumentative attitude whenever you are presented with suggestions about the processes you use to compound IV admixtures. Your practices inside and outside the hood must comply with USP <797> [sic] and ASHP [sic] aseptic technique practice guidelines. If the pharmacist checking your work does not agree with something you have done in the course of preparing an IV admixture, then it is necessary for them to constructively correct you. Your responses should not be argumentative and defensive. Admixture practices involve patient safety and the pharmacists need. to be confident in your work. For example, opening PhaSeal [sic] products outside the hood, effectively exposing them to the environment; then placing them in the hood to compound is not an acceptable practice. You must adhere to the basic aseptic technique practices. Also, some IV's that you make need to have a specific and known total volume prior to administration. You cannot assume the total volumes of diluents you are using when preparing this type of product. Communicate in a positive manner with the pharmacist to determine the best course of action for admixtures. These types of issues have been discussed between you and the pharmacists in the past. You need to learn from the encounters, act professionally and move past them understanding that your process has been improved and patient safety has been enhanced.
We have discussed the need for you to stay productive during your tour. You have read books and worked on crafts during your tour, outside of break time, and that is not acceptable. Whenever there is an extended period of down time in your clinic, contact me and I'll continue to work with you on learning the pharmacy systems and assisting with other pharmacy workload.
Report of Investigation (ROI), Exhibit C3
The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden thus shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's action was a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. Complainant averred that:
I had mixed a particular drug - a large volume Rituxan. And the pharmacist did not like the way I mixed it. I had mixed these Rituxan for years the same way. And there was no procedure manual to go by as to if they wanted me to mix it differently. I was handed a label and they walked out of the room. I mixed it the way I was trained in my previous job. The Rituxan was given to the patient. There were no side effects whatsoever. I mixed it with the patient's safety in mind. The way they wanted me to mix it was to pull out all this normal saline from two other bags and put into one evacuated container and then add the Rituxan. In order to do that I would have had to inject into the same container 15 times and that's strictly against the USP797 guidelines as far as contamination. I did not do that. I mixed it the safe way. This is what actually led to the written counseling.
ROI, Affidavit B1, p. 3.
With regard to the charge that Complainant read books and worked on crafts during her tour, Complainant averred that "A pharmacist . . . gave me a book to read. And I had down time in between chemo mixing. And there is basically nothing to do until the next one came." Id., p. 7. When asked why she felt that her age was a factor in her being disciplined, Complainant averred that she thought that S listened:
Strictly to the younger co-workers. He didn't give me any chance to explain anything. He didn't want to hear anything. In fact one of the things is that he had me - actually it was before this written counseling - he had me come over to the main pharmacy, which is in a different building across campus that whenever I had a couple hours of down time that he made me learn every job in the inpatient and outpatient pharmacy. And nobody else had to do that. I was hired to be an oncology pharmacy tech. That was my job description.
Id., p. 8.
With regard to Complainant's termination, the Agency's termination letter stated that the action was being taken because of Complainant's "failure to qualify during your probationary/trial period. Your termination is due to failure to follow procedures, poor workmanship, and inappropriate behavior towards coworkers (defensive and argumentative attitude). This has negatively affected the efficiency of the service." ROI, Exhibit C5. The letter was signed by CP, who further averred that:
The circumstances that led up to her termination were really the complaints that we had from her co-workers and the feeling that she was not improving in her performance also knowing that she was on probation. And due to the fact that we did have situations in which she certainly was not cleaning the [IV] hood properly doing some of her processes properly, being argumentative, not really getting along with her co-workers and not being a very productive worker.
ROI, Affidavit B3, p. 10.
In her rebuttal, when asked why she felt the Agency's action was due to her age, Complainant averred that:
I believe it was because of my age. The pharmacist[s] didn't want to work with an older person. And they didn't want to - I think they thought they were above me because they were pharmacists. We didn't work as a team. I tried to work as a team with them. But they thought were [sic] always right all the time. And sometimes you're not always right. And I feel as though I had a lot of insight and I could have given a lot of insight as this was a completely new thing to everybody at the VA. This was a brand new cancer center that had just opened. I set up the complete mixing room. I set up the workflow in the mixing room. I had the experience. I just think that they did not want to work with an older person.
ROI, Affidavit A, pp. 12-13.
Following a review of the record we find that Complainant has not shown the presence of a material issue of fact, nor has she shown, by a preponderance of the evidence, that the Agency's articulated reasons for its actions were pretextual, or otherwise shown that discrimination occurred. While Complainant believes the actions were based on her age, she has not shown any evidence of age-based animus among Management officials. Complainant argues that Management listened only to her colleague's criticism of her and refused to listen to Complainant's arguments in her own defense. We note that the U.S. Supreme Court has held that 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, see Liberty Lobby, 477 U.S. at 255, but even assuming the truth of Complainant's claim that Management listened only to the Pharmacist's complaints and ignored Complainant's explanations in her defense, that does not prove, by a preponderance of the evidence, that Management officials discriminated based on age. Complainant's affidavit confirms that she disagreed with the Pharmacists on various issues, and faced with disagreement between employees of differing ranks, Management may simply have preferred to consider only the input of the higher-ranked employees. However, in order to show age discrimination, Complainant needs to do more than just show she was treated unfairly, she needs to show that the unfair treatment was based on her age. This, Complainant has not done.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown the presence of a material issue of fact, nor has she shown, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
January 21, 2016
__________________
Date
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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