Leora R.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Oct 16, 2018

0120172529 (E.E.O.C. Oct. 16, 2018)

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

Leora R.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.

Appeal No. 0120172529

Agency No. HHS-HIS-0216-2016

DECISION

On July 5, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 17, 2017 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., and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

Introduction

At the time of events giving rise to this complaint, Complainant worked as a Clinical Nurse, GS-
9, in the Emergency Room (ER) at the Indian Health Service Hospital in Claremore, Oklahoma.
On February 7, 2016, the Agency reassigned Complainant to Claremore from its Kayenta,
Arizona facility.

On April 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), color (Black), and disability (“test anxiety”)

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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when, effective March 18, 2016, the Agency terminated Complainant’s employment during her
one-year probationary period. The Agency accepted Complainant’s claim for investigation.

Investigation

During the EEO investigation, Complainant stated that the ER Nursing Manager (S1) hired her
based on a telephonic interview, during which she informed S1 that she had eight months of ER
experience but would need further training and Orientation to become more skillful.
Complainant stated that S1 informed her that she could gain such training and instruction at
Claremore and that the ER staff would be supportive. Complainant stated that she accepted the
position based on S1’s agreement to provide her more ER experience. Complainant stated,
ultimately, S1 did not provide the Orientation and support she needed and ended up terminating
her instead. Complainant stated that coworkers harassed her, and falsified and exaggerated
information about her to get her fired. Complainant stated that S1 promised her “an atmosphere
of learning,” and she was told the competency testing would only shape her Orientation.
Complainant stated that she was given a competency test to complete by 3:00 p.m. the same day.

The Nursing Manager, S1, stated that she removed Complainant from employment because she
received complaints about Complainant’s knowledge, competency, and skill level. S1 stated that
Complainant was unable to perform and provide competent ER nursing care and failed to
demonstrate critical thinking skills. S1 stated that Complainant misrepresented her knowledge-
base during the application process, and she required constant supervision because she was a
“novice” rather than an “expert” as she indicated. S1 stated that all nurses in the ER Department
must complete clinical competencies. S1 stated that management distributes competency tests to
nurses, the tests are not proctored, and the nurses can complete the tests any time but must
submit within a week. S1 stated that management gave Complainant and a coworker a test on
February 22, 2016.

The record contains a letter, dated March 18, 2016, for Termination During Probationary Period,
citing “failure to qualify during your one-year probationary period.” The letter stated that
Complainant’s work performance and conduct were less than desirable for continued federal
employment. The letter cited inaccuracies on her employment application, poor test scores, and
complaints from colleagues.

Post-Investigation

Following the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge or an immediate final agency decision. On
November 14, 2016, Complainant requested the latter – a decision without a hearing based on
the record.

In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b).
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The decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. The decision stated that Complainant did not inform management that
she required accommodation for testing. Also, it stated that Complainant failed to show that the
Agency’s actions were based on discriminatory motives. The instant appeal from Complainant
followed.

On appeal, Complainant stated that the Agency failed to complete a thorough EEO investigation.
Complainant stated that management was unaware of her race and color until she arrived for her
first day of work, and after that time, they sought to remove her from employment. Further,
Complainant stated that management never informed her that she had to pass a competency test
to retain her job so she did not inform the Agency that she needed a test-taking accommodation
(such as a quiet place to test or additional test taking time).

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she
must first 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 McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, 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.
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See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990);
Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8,
1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Even assuming arguendo that Complainant established a prima facie case of discrimination, the
record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at
issue. The Agency stated that Complainant’s clinical skills did not meet the needs of the ER, the
department for which she was hired, as reflected by daily observance by staff and competency
tests. The Agency stated that Complainant exaggerated her skill level on her application, and she
did not inform anyone that she needed accommodation for the competency tests given.
Generally, an individual with a disability must inform an Agency that he/she requires an
accommodation, which did not occur here. See Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC No.
915.002 (October 17, 2002).

As to disparate treatment by management and harassment by coworkers, we find that
Complainant failed to prove, by a preponderance of the evidence, that the actions complained of
were based on race, color or disability. We find that, beyond her bare assertions, Complainant
has produced no evidence that the Agency’s actions were based on discriminatory animus. While
Complainant, on appeal, argues the investigation into her complaint was inadequate, we note
that, on November 14, 2016, Complainant requested a decision on the investigative record
without a hearing. A hearing would have been her opportunity to further develop the factual
record.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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
October 16, 2018
Date