[Redacted], Alisia M., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2020003406 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alisia M.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020003406 Hearing No. 530-2018-00119X Agency No. 4W1L17002 DECISION On May 13, 2020, 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 April 10, 2020, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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. ISSUE PRESENTED The issue presented on appeal is whether the preponderance of the evidence establishes that Complainant was subjected to discrimination based on race, sex, disability, and/or age. 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. 2020003406 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0660-11 Pharmacist in the Agency’s Pharmacy Flight, Medical Support Group at Dover Air Force Base, Delaware. Complainant’s first-line supervisor was the Pharmacy Flight Commander (S1). Complainant is a Black woman who was born in 1960. Complainant stated that she had a service-connected disability that caused stomach pain and difficulty walking. S1 stated that she was not aware that Complainant had a disability, and the personnel documents in the record do not reflect that Complainant had veterans’ preference. The effective date of Complainant’s career-conditional appointment was December 28, 2016, and she was subject to a probationary period. An African-American man who was born in 1975 (CW1) began working as a Pharmacist in the Pharmacy Flight in January 2017. On March 11, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), disability (physical), and age (born in 1960) when: 1. On or about December 28, 2016, S1 told Complainant to answer the phone using her first name, rather than “Dr. [last name]”; 2. On or about December 28, 2016, S1 told Complainant to counsel a patient without providing any training; 3. On or about January 9, 2017, S1 covered the word “Doctor” on Complainant’s lab coat; 4. From approximately December 28, 2016, through January 16, 2017, S1 refused Complainant’s request for a quiet place to take her Advanced Distributed Learning Service (ADLS) courses, causing her to fail; 5. On or about January 9, 2017, S1 told Complainant to stop using another employee’s access code to access patient records and refused to give Complainant her own access code; 6. From approximately January 9 through January 13, 2017, S1 asked Complainant to bring in copies of her diplomas to prove that she had the degrees listed on her resume; 7. On or about January 16, 2017, S1 refused to give Complainant a book to use during her tests, even though she had provided the book to CW1; 8. On or about January 17, 2017, S1 accused Complainant of not knowing the controlled substance schedules; 9. On or about January 19, 2017, S1 refused to help Complainant with calculations, but S1 helped CW1 with his calculations; 10. On or about February 2, 2017, S1 accused Complainant of not being able to counsel a patient; 11. On or about February 2, 2017, S1 refused to give Complainant credit for catching a “serious medical error,” which would have caused a patient to overdose; 2020003406 3 12. From approximately December 28, 2017, though February 7, 2017, S1 assigned Complainant the duties of a Pharmacy Technician rather than the duties of a Pharmacist; 13. On or about February 8, 2017, S1 had three people in the room while telling Complainant she was terminated; and 14. On February 8, 2017, Complainant was terminated from her position and separated from federal service effective immediately for performance. On November 15, 2017, the Agency notified Complainant that it had not completed its investigation within 180 days and provided notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The Agency provided Complainant with a copy of the report of investigation on December 22, 2017. Complainant subsequently withdrew her hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. Complainant did not submit a brief or statement in support of her appeal. The Agency submitted a brief asking the Commission to affirm its final decision. 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”). To prevail in a disparate treatment claim, 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 generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 2020003406 4 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). We find that Complainant has not established by the preponderance of the evidence in the record that some of the allegedly discriminatory incidents occurred in the manner alleged by Complainant. Complainant alleged that S1 covered the word “Doctor” on her lab coat, which S1 denied. S1 averred that she told Complainant she should cover the name of her former employer on her lab coat, and she stated that Complainant was the one who covered the lettering with a label. Similarly, Complainant alleged that S1 refused to give her an access code to access patient records, but S1 denied refusing Complainant an access code, noting that it takes a while to in- process new employees. S1 added that Complainant was asked several times to bring in copies of her diplomas or transcripts to verify her educational background and that Complainant could not receive an access code until her education had been authenticated. Although Complainant alleged that S1 gave CW1 a book to help him on his calculations test, both CW1 and S1 denied that S1 gave CW1 a book or otherwise assisted him with the test. Complainant stated that S1 accused her of not knowing the controlled substances schedule, but S1 explained that the issue was that Complainant did not know how to properly file prescriptions. Regarding Complainant’s allegation that S1 accused her of not being able to counsel a patient, S1 stated that a Pharmacist (CW2) reported that a patient asked Complainant if a medication contained a steroid and that Complainant was unable to answer the question, so CW2 stepped in to counsel the patient. Finally, Complainant alleged that S1 did not give her credit for catching a “serious medical error.” However, S1 explained that Complainant misunderstood the directions and assumed that the patient should only take one capsule at a time, when the dose of the medication in question was meant to be four capsules prior to a dental appointment. We find that Complainant has not established by preponderant evidence that these instances of alleged discrimination occurred. 2020003406 5 For other instances of alleged discrimination, we find that the Agency has provided legitimate, nondiscriminatory explanations for its actions and that Complainant has not established by the preponderance of the evidence that these legitimate, nondiscriminatory reasons are pretextual. The Agency’s legitimate, nondiscriminatory explanation for S1 telling Complainant not to call herself “Doctor (last name)” when she answered the phone was that S1 shared the standard greeting for answering the Pharmacy phone and that S1 suggested that Complainant not say “Doctor” was that, as of December 28, 2016, Complainant’s education had not been verified by the Agency. The legitimate, nondiscriminatory reason for asking Complainant to counsel a patient without training is that pharmacists are trained on how to counsel patients on the use of medication in pharmacy school. Regarding the ADLS training, the Agency’s legitimate, nondiscriminatory reason for having Complainant complete her ADLS courses at a cubicle was that Pharmacy staff typically took tests at one of the eight computer cubicles. S1 also explained that Complainant moved from one computer cubicle to another one that was closer to the bathroom of her own accord. The legitimate, nondiscriminatory reason proffered by the Agency for asking Complainant to stop using another employee’s access code was that the other employee would be responsible for any actions Complainant took in the system. The Agency’s legitimate, nondiscriminatory explanation for asking Complainant to provide copies of her diplomas and/or transcripts on multiple occasions was that the Medical Group Credentialing Department verifies the accuracy of the documents before giving the employee access to authorize and verify prescriptions. Moreover, the Agency requested these documents multiple times because one was written in Italian with no English translation and because one copy was blurred. The Agency’s legitimate, nondiscriminatory reason for assigning Complainant Pharmacy Technician duties was that all Pharmacists are cross-trained and need to know the duties of all employees so they can cover other positions when the Pharmacy was short-handed. Complainant has not established by preponderant evidence that these legitimate, nondiscriminatory reasons were a pretext for discrimination based on race, sex, disability, and/or age. Regarding Complainant’s termination, S1 stated that Complainant presented a patient-safety concern. In support of this conclusion, S1 averred that Complainant had competency issues and performed poorly, citing seven specific examples: (1) on December 29, 2016, Complainant lost items easily, was unable to counsel a patient how to use a glucometer and had to ask a Pharmacy Technician how to use the glucometer, and needed to look up all of the prescriptions she verified in a pharmaceutical reference; (2) on December 30, 2016, Complainant failed to recognize one medication as a Class II scheduled prescription, had no knowledge of combination prescription drugs, continued to ask questions about dosing, did not know about newer prescriptions, and lost her glasses four times and was unable to see without her glasses; (3) Complainant lost her verifying scan tag several times, forgot instructions quickly, was unable to calculate appropriate pediatric doses, and was unable to calculate the correct day supply; (4) on January 4, 2017, Complainant asked her coworkers three times what a “P” prescription was, was unaware how long a prescription was good for, and was retrained on different types of prescriptions that day; (5) on January 5, 2017, Complainant was not able to verify common prescriptions without looking up the usage and dose, was unable to comprehend the types of prescriptions that had been explained the previous day, and did not provide the requested copy of her diploma as 2020003406 6 requested; (6) on January 6, 2017, a member of the military had to return to the Pharmacy to assist Complainant when she failed to follow instructions for logging in to a program; and (7) on January 13, 2017, Complainant needed to be retrained on putting prescriptions away on dispensing shelves and how to dispense medication from the computer system. As evidence of pretext, Complainant stated that S1 made her feel uncomfortable and judged. Complainant also averred that she was pulled away from Pharmacist duties to perform Pharmacy Technician duties. We find that Complainant has not established that the Agency’s legitimate, nondiscriminatory reason for terminating her during her probationary period was pretextual. With respect to the presence of three individuals when Complainant was terminated, the Agency’s legitimate, nondiscriminatory reason was that Civilian Personnel employees were present in accordance with a Civilian Personnel directive and that a Security Manager was present to take Complainant’s access card so she could not have access to secured areas or take any malicious actions. Complainant generally asserted that the presence of these three individuals constituted racial profiling against her. However, we find that Complainant has not established that these actions constituted racial profiling, and she has not otherwise established pretext for discrimination by preponderant evidence. 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 decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2020003406 7 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003406 8 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 19, 2021 Date