Jene M.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 29, 20160120142883 (E.E.O.C. Jan. 29, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jene M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120142883 Agency No. 2003-0502-2014100798 DECISION Complainant filed an appeal from the Agency’s July 15, 2014 final decision 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 for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Licensed Practical Nurse at the Agency’s Community Outpatient Clinic in Alexandria, Louisiana. On January 16, 2014, she filed an EEO complaint in which she alleged that the Nurse Manager at the Alexandria Medical Center, the parent hospital of the clinic, Complainant’s second-line Supervisor (S2), and the Associate Director of the Nursing Program, her third-line Supervisor (S3), retaliated against her for having filed a successful prior EEO complaint by lowering her performance appraisal for Fiscal Year 2013 from excellent to fully successful. Complainant had filed an EEO complaint in July 2012, and on August 21, 2013, the Agency issued a final decision finding in her favor. In that complaint, she named S2 and S3 as the responsible management officials. Investigative Report (IR) 143-45, 198-99, 228-32, 240. 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. 0120142883 2 On October 30, 2013, the Nurse Manager for the Clinic, Complainant’s immediate Supervisor (S1) presented Complainant with her FY 2013 performance evaluation. Complainant averred that S1 had told her that she had given Complainant a rating of “exceptional” but that S2 and S3 had revised it downward to “fully successful. IR 141, 194-96, 239-41, 275, She pointed out that she had been given an overall rating of “excellent” on her FY 2012 performance evaluation, but acknowledged that she was under a different supervisor at that time. IR 192-93, 233, 236-37, 246-47, 252, 255-56, 261-64, 268-70. S2 averred that the reason for giving Complainant a performance appraisal rating of “fully successful” was the absence of documentation needed to support a higher rating. She admitted that S1 had initially intended to give Complainant a rating of excellent, but noted that S1 was a brand new supervisor and was not yet fully conversant with the roles, policies, and procedures to follow in preparing a performance appraisal. She averred that she and S1 had discussed the matter and had jointly agreed that a rating of “fully successful” was in order, which S2 characterized as “highly satisfactory. IR 166-73. S1 did confirm that when she had prepared the appraisal she had intended to award Complainant a rating of “excellent,” but averred that after her discussions with S2, she agreed with S2 that Complainant did not present enough documentation to support the higher rating. IR 184-85. S1 denied telling Complainant that she thought Complainant’s performance should have been rated at “excellent.” Rather, she averred that she told Complainant that she was “doing a wonderful job,” that the rating was being done differently than it had been done under her previous supervisor, and that she was free to submit additional supporting documentation at any time. IR 186. Both S1 and S2 averred that although S3 signed off on the evaluation as a matter of form, she was not involved in its preparation or review. IR 168-69, 185. In addition to Complainant, S1 and S2 awarded final ratings of “fully successful” to three other nurses after tentatively giving them ratings of “excellent.” The reason for doing so was the same with all four employees – lack of documentation necessary to justify the higher rating. IR 216. 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). On May 12, 2014, Complainant requested an immediate final decision without a hearing. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving performance evaluations 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). Therefore, in order to prevail on her retaliation claim, Complainant would have to prove, by a preponderance of the evidence, that S2 and S3 were motivated by 0120142883 3 unlawful consideration of her prior EEO activity in deciding to lower Complainant’s FY 2013 performance appraisal. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as this, Complainant can prove the existence of an unlawful motivation by presenting documents or sworn testimony showing that the reason articulated for lowering her performance appraisal is pretextual, i.e., not the real reason but rather a cover for reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext can take the form of unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). We acknowledge that Complainant’s receipt of a fully successful appraisal on the heels of winning on her prior EEO complaint, particularly after she received an excellent rating the year before, is extremely suspicious and presents a powerful and compelling prima facie case of retaliation. A big problem with Complainant’s theory, however, is the fact that three other Nurses also had their final evaluations lowered from their initial rating levels for the exact same reason as her, namely not enough documentation to support the higher rating. Furthermore, S1 had corroborated S2’s version of events, both as to the process by which they arrived at a final FY 2013 appraisal rating for Complainant and as to the lack of participation in that process by S3. Complainant has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by S1 that she and S2 had jointly concluded that Complainant was performing at the fully successful level during FY 2013 or which call S1’s veracity into question. We therefore agree with the Agency that Complainant failed to establish the existence of an unlawful motive on the part of S2 or S3 in connection with her receipt of a “fully successful” performance appraisal for FY 2013. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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: 0120142883 4 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 0120142883 5 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 29, 2016 Date Copy with citationCopy as parenthetical citation