Rafaela B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 20, 2019

0120182494 (E.E.O.C. Aug. 20, 2019)

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

Rafaela B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120182494

Hearing No. 530-2017-00245X

Agency No. 200406132016101122

DECISION

On July 16, 2018, 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
July 10, 2018, final order 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. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

ISSUE PRESENTED

Whether the EEOC Administrative Judge (AJ) correctly determined that Complainant failed to
prove that she was discriminated against based on race when on November 9, 2015, she was issued
a Letter of Termination during Probationary Period, with an effective date of November 12, 2015.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Certified Nursing
Assistant (CNA), GS-5 at the Agency’s Veterans Affairs Medical Center (VAMC) facility in
Martinsburg, West Virginia. Complainant, an African-American, was appointed to the
Martinsburg VAMC, subject to a one-year probationary period beginning December 28, 2015. As
a CNA, one of her duties was to maintain a clean and neat environment for patients. She was also
required to demonstrate courteous, prompt, and helpful interactions in personal and telephone
encounters with patients, visitors, and staff.

In June 2015, at Complainant's six-month evaluation, S1, her first-line supervisor, a Nurse
Manager spoke to Complainant about being positive in her interactions because some of her
communications with others were abrasive. S1 held a staff meeting, on or about September 11,
2015, during which Complainant became argumentative. S1 told Complainant that she was playing
devil's advocate during the meeting; and reportedly stated a reminder that some of the staff were
still on probation.

On or about September 24, 2015, another Nurse Manager (NM1), who was filling in for S1 while
she was on leave, held a meeting to discuss some assignment conflicts in the Community Living
Center. She reported to S1, after the meeting, that Complainant was loud and disrespectful; jumped
in the conversation; and indicated that she did not know what was being talked about. Complainant
denied the report.

On October 10, 2015, a Charge Nurse (CN1) who was the Night Supervisor instructed
Complainant to collect the laundry, but Complainant refused to do so; and another employee
volunteered to complete the task. That same day, CN1 reported that Complainant was watching
television instead of attending to patients. Complainant denied this report. On November 9, 2015,
the Associate Chief Nurse (ACN1), recommended that Complainant be terminated for conduct and
performance issues. Complainant received the November 9, 2015, termination letter on November
12, 2015. She was terminated during her probationary period from her position as a CNA effective
that day.

On February 22, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) as set forth above. 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 Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the
case granted the Agency’s April 30, 2018, motion for a decision without a hearing and issued a
decision without a hearing on June 29, 2018. The AJ found that Complainant failed to establish a
prima facie case of disparate treatment based on race. 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.

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CONTENTIONS ON APPEAL

In her appeal brief, Complainant, among other things, asks to be made whole, indicating that the
AJ’s decision was in error. She asserts that the AJ ignored the direct statements and documentary
evidence she presented that demonstrate that the stated reason for her termination was a pretext
for discrimination.

In its appeal brief, the Agency requests that the Commission affirm its final order adopting the
AJ’s decision because Complainant did not raise any new arguments or facts but merely reiterated
her prior arguments.

STANDARD OF REVIEW

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (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”).

ANALYSIS AND FINDINGS

AJ’s Issuance of a Decision Without a Hearing

We must determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255.
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A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant indicated that
the AJ’s decision was in error, asserting that the AJ ignored the direct statements and documentary
evidence she presented demonstrating that the stated reason for her termination is a pretext for
discrimination. Ultimately, we find that the AJ correctly determined that there are no genuine
issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a
decision without a hearing was appropriate.

Disparate Treatment

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must initially establish a prima facie case by demonstrating that she was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at
n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, a 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 Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race; we find that the Agency articulated legitimate, nondiscriminatory reasons for terminating her
employment during her probationary period; and that Complainant has presented no new evidence
to support her assertions that the AJ’s decision was in error. Specifically, the Agency explained
that Complainant was terminated during her probationary period due to unacceptable conduct and
performance issues including the failure to follow instructions.

The evidence shows that NM1 had reported to S1, who was on leave, that Complainant was loud
and disrespectful at a meeting. This was after Complainant had exhibited similar conduct to that
reported by NM1 in a meeting that S1 conducted; and after S1 had spoken to Complainant about
the need to be positive in her interactions as she was sometimes abrasive in her communications
with others.

Additionally, CN1 had reported that Complainant failed to follow instructions when she refused
to collect the laundry; and that she was watching television instead of attending to patients.
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All the stated infractions occurred within a three-week period shortly after Complainant was
halfway through her one-year probationary period. Notably, the infractions were all in violation
of the duty requirements that Complainant maintain a clean and neat environment for patients, and
that she demonstrates courteous, prompt, and helpful interactions in personal and telephone
encounters with patients, visitors and staff.

Complainant contended that the Agency’s explanations for her termination was pretextual; and she
denied NM1 and CN1’s reports about her. However, Complainant provided no evidence to show
that other employees outside of her race received more favorable treatment after they engaged in
similar conduct and had similar performance issues during their probationary periods like she did;
and although Complainant denied her reported conduct, she has failed to show that management’s
decision to terminate her during probation was motivated by discriminatory animus or based on
membership in her protected class. Where a complainant is a probationary employee, we have long
held that he or she is subject to retention, advancement, or termination at the discretion of an
agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal
Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152
(1974)). We therefore find that Complainant has presented no genuine issues of material facts in
dispute that would support a rejection of the AJ’s decision and the Agency’s final order adopting
that decision.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

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.
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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. The court
has the sole discretion to grant or deny these types of requests.

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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

August 20, 2019
Date