Raquel T.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 6, 20160120142846 (E.E.O.C. Jan. 6, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raquel T.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120142846 Agency No. 2003-0549-2013103876 DECISION Complainant filed an appeal from the Agency’s July 29, 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 Respiratory Therapist at the North Texas Veterans Healthcare Complex in Dallas, Texas. On August 29, 2013, she filed an EEO complaint in which she alleged that the Respiratory Therapy Chief (RTC) discriminated against her on the bases of race (Caucasian) and sex (female) by not selecting her for a Home Oxygen Coordinator (HOC) assignment on July 19, 2013. On May 29, 2013, the RTC sent an email to his staff letting them know about the availability of the HOC assignment and advising them to respond if they were interested. Investigative Report (IR) 65, 118. Three employees asked to be considered for the assignment, including Complainant, IR 67, 119-27. The RTC interviewed everyone who expressed an interest, asking them the same set of questions addressing whether they could work with terminally ill 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. 0120142846 2 patients. IR 69-70. According to the RTC’s interview sheet, Complainant’s answer to the first question, whether she would entrust the medical care of her relatives to the facility, was that she would never allow her father or uncles to come to the Medical Center because they would not get good care, and that the care at the facility was “horrible.” IR 122. The RTC averred that he was “floored” by that answer, and that Complainant had, “pretty much shot herself in the foot.” IR 70-71, 84. The RTC chose one of Complainant’s male colleagues for the assignment. IR 53-54. Complainant denied making negative comments about the facility, stating that she merely would prefer that her father remain with the medical team that he already had. IR 52. When asked by the investigator why she believed her gender and race were factors in her nonselection, Complainant responded that the Selectee had been preselected and that the RTC had called her a “frugal Jew.” IR 54-56. The RTC denied both assertions, noting that Complainant “had problems and tends not to tell the truth,” that she was on administrative leave pending disciplinary action, and that he did not think she was even Jewish. IR 82-84. As to the alleged “frugal Jew” remark, Complainant acknowledged that no one else had heard it. IR 55-56. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 personnel assignments 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 claim of race and sex discrimination, Complainant would have to prove, by a preponderance of the evidence, that the RTC was motivated by unlawful considerations of her race and gender in connection with his decision not to give her the HOC assignment. 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 a discriminatory motive by showing that the RTC’s articulated reasons for not assigning her to the HOC position are pretextual. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. She can demonstrate pretext with a showing of discriminatory statements or past personal treatment attributable to the RTC, comparative or statistical data showing differences in treatment across racial or gender lines, unequal application of Agency policy, deviations from standard procedures without explanation or 0120142846 3 justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). Complainant did not provide evidence of any of the indicators of pretext described above. She has not presented any sworn statements from other witnesses or documents that contradict the explanation provided by the RTC, or which call the RTC’s veracity into question. We note in particular that the RTC’s contemporaneously prepared interview sheet tends to corroborate his affidavit testimony regarding Complainant’s answer to the first interview question, a response that included sharp criticism of the quality of care provided at the facility. We also note that there is absolutely nothing in the record that even remotely corroborates Complainant’s assertion that the RTC had made the anti-Semitic remark she attributes to him. We therefore agree with the Agency that Complainant failed to establish the existence of an unlawful motive on the part of the RTC with respect his decision not to select her for the HOC assignment. On appeal, Complainant raises numerous contentions. She argues for example that the Agency’s final decision was arbitrary and capricious in that it only addressed one of seventeen allegations of discrimination that she tried to raise. Appeal Brief (AB), pp. 1-2. The Agency’s decision addressed the claim that it had previously accepted. Complainant subsequently tried to amend her complaint to include other incidents, but the Agency found that those incidents were not like or related to the accepted claim and informed Complainant that she had to bring those matters to the attention of an EEO Counselor. IR 26-27, 30-32. Complainant also appears to contest the Agency’s procedural finding that she did not respond to the notice of her right to request a hearing before the Commission, arguing that it was a “gross misrepresentation” of the record.” AB. P. 1. However, she provides no further elaboration. Finally, Complainant inappropriately attempts to raise an allegation regarding a proposed suspension for the first time on appeal. See Complainant v. United States Postal Service, EEOC Appeal No. 0120140209 n. 1 (February 28, 2014). None of these contentions have anything to do with the merits of her claim. 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: 0120142846 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 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 0120142846 5 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 6, 2016 Date Copy with citationCopy as parenthetical citation