May P., Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 27, 2017

0120160220 (E.E.O.C. Jul. 27, 2017)

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

May P.,
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120160220

Hearing No. 440-2014-00067X

Agency No. 200J-0537-2013102134

DECISION

On October 13, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s June 30, 2015, 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical
Nurse (LPN) at the Jesse Brown VA Medical Center (VAMC). Complainant previously worked
at the VA Lakeside Outpatient Clinic until she was reassigned to the Jesse Brown VAMC in
August 2012.

On December 14, 2012, the Chief Nursing Officer and the Deputy Associate Director for Patient
Care Services, Jesse Brown VAMC (Chief) and the Nurse Manager met with Complainant and
notified her of a proposed 14-day suspension. During that meeting, Complainant spoke in a loud
tone and made disrespectful comments to them. As a result, Complainant was notified that the

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.
0120160220

2
proposed suspension was being rescinded and that a notice of proposed removal was being
issued instead.

The Chief consulted with Human Resources regarding the appropriateness of the proposed
disciplinary penalty within the Agency’s Table of Penalties for the alleged misconduct. The
Employee Relations Specialist stated that although a formal investigation of the charges against
Complainant was not conducted, management conducted a thorough investigation that included
the compilation of evidence in support of the charges. The Employee Relations Specialist stated
that the evidence supported the charges against Complainant.

On January 10, 2013, Complainant was formally notified that the December 14, 2012 proposed
suspension was rescinded in lieu of her proposed removal. The Chief notified Complainant of
her proposed removal for conduct that was inappropriate based on eight separate charges of
misconduct (identified as (a)- (h)), including Complainant’s behavior at the December 14, 2012
meeting and for seven other instances of disrespectful conduct toward her supervisors and
coworkers, failure to comply with supervisory instructions, and careless workmanship.
Complainant was also notified that her June 21, 2006, two-day suspension for disrespectful
conduct toward an employee would be taken into account in determining proper disciplinary
action. Complainant was advised that she had a right to reply to the proposed removal notice
orally, or in writing, or both orally and in writing, and to submit affidavits in support of her
reply, showing why the proposed removal was inaccurate and should not be effected.

In her February 6, 2013 written reply to her proposed removal notice, Complainant
acknowledged her misconduct with respect to some of the charges and disputed other charges by
providing her own explanation.

On February 7, 2013, the Associate Director, through the Assistant Chief, recommended to the
Acting Medical Center Director (Acting Director) that Complainant’s proposed removal should
be mitigated to a 10-day suspension. The Associate Director noted that management followed
the proper procedure for investigating the charges against Complainant. He explained that after
considering Complainant’s reply to the proposed removal, review of the evidence file, and
consideration of the “Douglas Factors”, he sustained all the charges against Complainant, but
decided to mitigate the discipline to a 10-day suspension rather than removal because
Complainant expressed remorse for her disrespectful conduct and the other actions set forth in
the charges.

The Acting Director was the final decision maker regarding Complainant’s suspension. The
Acting Director stated that she sustained two of the charges alleged: charge (a) charging
Complainant with disrespectful conduct toward her supervisors on the December 14, 2012
meeting; and charge (f) charging Complainant with disrespectful conduct towards the charge
nurse on August 8, 2012. Thereafter, Complainant was issued a February 21, 2013 letter
0120160220

3
notifying her of the decision to suspend her for 14 calendar days, effective March 17, 2013,
through March 30, 2013. 2

On June 13, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of religion (Pentecostal) and age when:

She was suspended for 14 days beginning on March 17, 2013, through March 30, 2013.3

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 requested a hearing but the
AJ denied the hearing request on the grounds that Complainant failed to comply with the AJ’s
Order to Show Cause regarding failure to timely file prehearing submissions and an Order to
Show Cause for failure to comply with the Acknowledgement & Scheduling Order. The AJ
remanded the complaint to the Agency, and 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

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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). 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

2 The record reflects that the Associate Director recommended to the Acting Director mitigation
of the penalty to ten days. However, the record shows that the Acting Director suspended
Complainant for 14 days.
3 In her formal complaint Complainant also raised claims regarding reassignment, performance
appraisal, demotion, and harassment which the Agency dismissed for failure to bring to the
attention of the EEO Counselor. Complainant does not challenge the Agency’s dismissal of
those claims on appeal. Thus, we do not address the Agency’s dismissal of those claims in this
decision.
0120160220

4
discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978).

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. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to 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, 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. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).

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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990).

Complainant does not challenge the AJ’s cancellation of the hearing request. In the present case,
we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Namely, Complainant was suspended based upon her inappropriate behavior. Complainant
failed to show that any similarly situated comparative was treated differently. Further,
Complainant failed to show that the Agency’s actions were a pretext for discrimination based on
her religion or age.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

0120160220

5
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.
0120160220

6
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

July 27, 2017
Date