0120110069
03-10-2011
Akela S. Brown, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Akela S. Brown,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110069
Hearing No. 443200900065X
Agency No. 200J03302008101214
DECISION
On September 13, 2010, Complainant filed an appeal from the Agency's
August 10, 2010, 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. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time giving rise to this complaint, Complainant worked as a
Veterans Services Representative (VSR). On April 14, 2008, Complainant
filed an EEO complaint alleging that the Agency discriminated against her
on the bases of race (African-American), sex (female), color (Black),
and reprisal for prior protected when, on November 14, 2007 she was
issued a notice of removal for unsatisfactory performance.
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing and the AJ held a hearing on June 30, 2009,
and issued a decision on July 19, 2010. 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. The instant
appeal followed.
The AJ found that the evidence established the following facts.
Complainant was hired by the Agency on April 30, 2007, but did not begin
working in her position as VSR until May 13, 2007. According to the
Agency, all new VSR trainees, including Complainant, are put through
centralized training which takes place at the beginning of the VSR
trainee's two-year probationary period. Complainant was assigned to
a training group of five people (group Orange), of which Complainant
was the only African-American. The record indicates that along with
other members of the Orange group, Complainant received training on the
performance of her job duties which were to receive, analyze, and process
claims for veteran's benefits. Typically, trainees were assigned to learn
different topics so that they were not all working the same type of claim
at once. The different topics varied in complexity. Witness testimony
at the hearing in this matter named Post Traumatic Stress Disorder,
Reserve Guard, and Agent Orange claims as difficult or most complex,
while "Increases" was considered one of the easier topics to master.
Once a trainee had reached a certain level of accuracy and had completed a
certain number of claims on a particular topic, he or she was "signed off"
on that particular topic, meaning that he or she had mastered the topic
and could release the claim without supplemental supervisory authority.
According to the Agency, the decision to sign off a trainee is within
the discretion of the reviewing supervisor.
Complainant's work load initially consisted of less complex types of
veteran's claims including "Increases" and "New Conditions." According to
the Agency, Complainant was initially found to be developing well during
her training. However, Complainant's reviewing supervisor soon noted that
Complainant lacked the ability to navigate through information contained
in case notes which would enable her to process claims more efficiently
and effectively. In order to provide Complainant with individual,
one-on-one training, her reviewing supervisor was relieved of some of
her duties so that she could concentrate on assisting Complainant.
By October 27, 2007, Complainant's reviewing supervisor made the decision
to move Complainant to a different training group. Complainant was then
informed that she would not learn new topics until she mastered the
ones she was being taught. The record indicates that Complainant's
supervisor found that Complainant did not double check her work,
relied too heavily on checklists rather than development notes, did not
review treatment record files enough and misallocated her time while
processing claims. The record indicates that Complainant was provided
with several suggestions on how to improve accuracy and timeliness in
her work. However, according to Complainant's reviewing supervisor,
Complainant completed unnecessary actions and failed to use the correct
systems or documents to verify information for claims filed.
By mid-September, members of the Orange group were signed off on 5 topics
while Complainant had been given sign off authority on only two topics.
Each member of the Orange training group started training on the same
day and continued that same training schedule until October 20, 2007.
However, Complainant had the lowest accuracy percentages in the Orange
group for 12 out of the 20 weeks they trained together, which resulted
in her accuracy numbers being the lowest of the group 60 % of the time.
According to Agency witnesses, VSR trainees are assessed on their
accuracy, productivity, and the number of topics over which they were
found to be proficient. The Agency recommended Complainant's termination
because, compared to her peer group, Complainant failed to grasp the
basic concepts of claim processing and she failed to follow protocol
in performing her duties. Complainant was also found to have a high
error rate and failed to show the ability to analyze claims. Because
Complainant's performance failed to improve, despite individualized
training, Agency officials recommended Complainant's termination during
her probationary period.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that members of her peer group were
provided the opportunity to train on the easiest topics first, while she
was required to learn harder concepts. Complainant further contends that
she was set up for failure when she was given the most complex cases to
work on first.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9,
1999).
Complainant alleges that she was terminated during her probationary
period as a VSR trainee due to her race, sex, color and in reprisal for
her prior EEO activity. Here, we agree with the Agency's finding of no
discrimination. Generally, claims of disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester
Foundation 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 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). For instance, to establish a prima facie case of reprisal,
Complainant generally must show that: (1) she engaged in protected
EEO activity; (2) the Agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the Agency;
and (4) a nexus exists between his protected activity and the adverse
treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981).
Even assuming arguendo that Complainant satisfied the above elements
to establish a prima facie case of discrimination as alleged, we find
further that the Agency articulated legitimate, nondiscriminatory reasons
for its conduct as alleged in this matter and Complainant failed to
show that those reasons are pretext for discrimination. Specifically,
we find that Complainant was provided specific, individualized training
and failed to develop sufficient skills to properly analyze claims.
The record indicates that she had difficulty with the easiest type of
claim (Increases), and never received the authority to sign off on
an Increase claim without supervisory authority. Complainant failed
to establish that the Agency's action was based on discriminatory
motives. Based on a thorough review of the record, we AFFIRM the final
agency decision finding no discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, it is the decision of
the Equal Employment Opportunity Commission to affirm the Agency's final
action because the preponderance of the evidence does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 9-18 (November 9, 1999).
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 10, 2011
__________________
Date
2
0120110069
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110069