Maryland E.,1 Complainant,v.Robert Wilke, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 16, 2018

0120172877 (E.E.O.C. Oct. 16, 2018)

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

Maryland E.,1
Complainant,

v.

Robert Wilke,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120172877

Agency No. 200305192016103727

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the July 24, 2017 final Agency
decision (FAD) 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Support
Assistant (MSA), GS-5, at the Agency’s VA Medical Center facility in Big Spring, Texas.

On February 7, 2016, the Agency hired Complainant as a MSA, subject to a probationary period.
She was still serving during this probationary period when the Agency terminated her
employment on May 17, 2016.

On August 31, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of race (African-American) when, from February to May
2016, Agency personnel subjected her to ongoing harassment (non-sexual) and a hostile work
environment and, on May 17, 2016, the Agency terminated her employment.

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 alleged the first of these events occurred in February 2016, when a nurse
practitioner (white male) told Complainant that he was “a redneck.” He repeated this on several
other occasions. The nurse practitioner would attempt to make her appear unfit and/or hinder her
ability to perform her duties and would speak to her in a condescending and dismissive way.

Complainant alleged a MSA ward clerk (white female) created situations where Complainant’s
ability to perform her responsibilities and candor were questioned. She spoke to Complainant in
a condescending way. She asked Complainant “What happened to your hair?” when
Complainant wore her hair to work in a natural hairstyle, as opposed to a straightened hairstyle.
The ward clerk was charged with training Complainant on specific duties and aspects of her job
and deliberately omitted information to make Complainant appear incompetent. The ward clerk
encouraged another co-worker to complete a negative report relating to Complainant’s ability to
complete work tasks and the ward clerk falsely stated that Complainant engaged in an
inappropriate conversation with a patient.

Complainant alleged that a charge nurse (white female) would not make herself available to
review meeting minutes with Complainant, as the charge nurse did with other workers, which
made Complainant appear incompetent. The charge nurse would approach the nurses station with
her back to Complainant. On or around May 11, 2016, the charge nurse gave false statements to
Complainant’s supervisor about Complainant’s work activities.

Complainant alleged that a nurse’s aide (white female) started a false rumor that Complainant
was recording staff members’ movements; complained to Complainant’s supervisor that
Complainant was giving patient orders she was not authorized to give; and falsely reported
Complainant’s activities while watching a suicidal patient.

Complainant alleged that a social worker (white female) complained about the detail of
Complainant’s emails to make Complainant seem incompetent; locked her out of computer
systems so that she would be unable to complete tasks timely; and provided false information to
make Complainant look incompetent.

Complainant allegedly informed her supervisor that certain staff members were unwelcome and
the supervisor told her to “give it time.” Upon making an investigation, the supervisor did not
ask the necessary questions to ascertain whether Complainant had engaged in any wrongdoing
with respect to the suicidal patient. The supervisor allegedly told the union executive vice
president that Complainant’s performance was very satisfactory, Complainant was doing an
excellent job and was very Veteran-centric. However, the supervisor provided false information
to support Complainant’s termination.

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). 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.
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In the FAD, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. The supervisor testified that, in reference to the alleged
improper conversation with a patient, Complainant was reassigned pending an investigation and
the investigation found Complainant’s conduct was not serious or severe and Complainant was
returned to her work area and verbally counseled. With respect to the incident involving the
suicidal patient, the supervisor testified she met with Complainant about the incident and noted
Complainant’s varied statements about how long the patient was left with Complainant, which
led her to believe Complainant did not provide accurate statements. The supervisor discussed the
matter with a second level supervisor and they agreed that termination was warranted. The
reason for Complainant’s termination was a consistent lack of candor. The supervisor noted
several instances where Complainant had been either untruthful or not forthcoming when
questioned. The Supervisor also testified Complainant was also terminated for failure to follow
supervisory instructions. Complainant had been instructed not to engage in discussions with
patients outside of her duties as a MSA and she should refer patients to another co-worker for
assistance with matters outside of the scope of her duties. A human resources employee
corroborated SV’s testimony that Complainant was terminated for failure to follow instructions
and lack of candor related to two patient incidences.

In attempting to establish that the Agency’s reasons for its actions were pretextual, Complainant
alleged that the term, “redneck,” which was used by the nurse practitioner in Complainant’s
presence, refers to a person who is racist against people of color. She indicated the use of the
term, “redneck,” was intimidating and the nurse practitioner seemed to use the term to incite a
racially-based negative response. The Agency found Complainant did not provide any evidence
which would credibly link her termination to her race and noted that the only evidence offered by
Complainant to support her claim was the nurse practitioner’s use of the term, “redneck,” which
did not refer to her race. The Agency also noted that the nurse practitioner was not involved in
the decision to terminate Complainant.

The Agency also found the record failed to establish that the alleged events included severe or
pervasive conduct based on her race. The Agency found Complainant did not demonstrate that
her work environment was permeated with discriminatory intimidation, ridicule, and insults
sufficiently severe or pervasive to alter the conditions of her employment and create an abusive
working environment. Thus, the Agency found Complainant failed to establish she had been
subjected to discrimination as alleged.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant challenges the accuracy and/or veracity of her co-workers’ testimony.
Complainant notes that the ward where she and her co-workers worked is under video
surveillance and the events at issue are recorded. However, the supervisor did not check or
produce the video recordings which would support Complainant’s statement.
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Complainant further asserts that while the Agency cleared her of any wrongdoing associated
with the incident involving an alleged improper conversation with a patient, this incident was,
nevertheless, used to support her termination. She also alleges that the underlying issue of the
incidents at issue is that the nurses left patients at the ward desk for Complainant to watch. She
also alleges that the supervisor knew of Complainant’s concerns and took no action to correct
Complainant’s co-workers’ behavior.

In response, the Agency asserts that Complainant has presented no evidence or convincing
argument to show she satisfied her burden of proof regarding her claims of discrimination and a
hostile work environment. The Agency incorporates the FAD into its appeal and asserts that the
Agency provided legitimate non-discriminatory reasons for its actions. The Agency requests we
affirm its FAD.

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”).

Complainant alleged that the Agency treated her disparately. Generally, such claims of disparate
treatment are examined under the three-part analysis established in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973).

For a 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 802 n. 13.

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency's
reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the
burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason.
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Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Cr. v.
Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-716(1983).

In the instant case, if we assume Complainant has established a prima facie case, her claim
nevertheless fails, as the record establishes the Agency had legitimate and nondiscriminatory
reasons for its actions. The Agency identified two (2) specific incidents where Complainant’s
behavior was sufficient to warrant investigating or questioning Complainant’s behavior with
patients. Even though the supervisor only verbally counseled Complainant with respect to the
incident involving an inappropriate conversation with a patient, this incident in combination with
Complainant’s inconsistent responses to the incident involving the suicidal patient was sufficient
for the Agency’s management to conclude that Complainant had displayed a lack of candor
and/or failure to follow instructions, such that termination was warranted.

We also find that Complainant has failed to provide pervasive evidence to rebut the Agency’s
reasons for terminating Complainant’s employment. While there was conflict between
Complainant and her co-workers, the record is insufficient to support the conclusion that the
Agency's reasons for Complainant’s termination were a pretext for discrimination. Complainant
essentially argues that her co-worker’s use of the term, “redneck,” is evidence of racial bias in
the workplace. The Commission has held that the term, “redneck,” is not per se a racial remark.
See Slaten v. U.S. Postal Serv., EEOC Appeal No. 01901938 (June 21, 1990). In the instant case,
the record is insufficient to support finding that it was used to convey racial bias. Complainant
also indicated that a co-worker asked her “what happened” to her hair when Complainant
changed her hairstyle from a straightened hairstyle to a naturally textured style. While such a
statement is offensive and improper in the workplace, it is not sufficiently severe or pervasive to
alter the conditions of Complainant's employment and create a hostile or abusive working
environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, we find
that Complainant has not shown the Agency’s proffered reasons to be pretext for discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed in this decision, we AFFIRM the Agency’s finding that Complainant has
failed to establish by a preponderance of the evidence that she was subject to discrimination on
the basis of race.

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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. 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.
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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

October 16, 2018
Date