However, the quality of her job performance with Respondents and their predecessor prior to her declining performance commencing in the Spring of 1996 is irrelevant, because Respondents' proffered reasons for her discharge concern her behavior during the latter period. Moreover, the thrust of Complainant's argument is that it was wrong, unfair, or unjust for Respondents not to weigh the grounds that they cited against Complainant's past performance and find in favor of retaining her, and that therefore Respondents' rationale was pretext. However, " [I]t is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible . . . [rather] he must show that the explanation is a ‘phony reason.'" Kahn v. U.S. Secretary of Labor, 69 F.3d at 277, citing Pignato v. Am. Trans Air, Inc., 14 F.3d 342, 349 (7th Cir. 1994). Thus, even if Complainant's contention were correct, that would be insufficient to establish pretext.
[Page 10]
Complainant attacks Respondent's proffered non-discriminatory reasons for dismissing Gale as pretext on the following bases: 1) Respondents' reliance on the complaint of rudeness to a patient, which occurred in March, ignored praise from a patient provided in much closer proximity; 2) the incident of eating in the laboratory took place two months before Gale's protected activity and Gale's employment was not terminated at the time it occurred; 3) there were no "excessive unexcused absences" -- Ventura testified that the only violation of office policy was one day without a doctor's note and that Gale had not exhausted her accumulated sick time; further, Ventura's testimony that she had to find someone to accommodate patients is contradicted by Ventura's testimony that Gale arranged for coverage when she was absent; 4) the misadministration was immediately reported to Rondina, who advised her, contrary to law, not to report it, and Gale was not even disciplined for it at the time it occurred; and 5) the incident with Lapidus was trivial. Complainant's Brief at 16-18.
We have examined the incidents cited by Respondents in support of their rationale, the Complainant's attack on them, and the reasons cited by the ALJ for finding them pretextual. In each instance, there is evidence that the incident did occur as Respondents stated. Unlike the ALJ, based on our examination, we find that Respondents' rationale for their action is credible and that Complainant has failed to show by a preponderance of the evidence that it was a pretext for discrimination. We consider each incident below.
The ALJ dismissed the incident of discourtesy which prompted the letter of apology to a patient at RX 8 on the basis that it was "a single incident" substantially outweighed by Gale's exemplary skills and record of service (as documented by her resume, prior evaluation, letters from her prior employer, a staff physician and a patient). R. D. and O. at 13. With the exception of the letter from a patient, all of the evidence cited by the ALJ (as documenting Gale's skills and record of service) related to Gale's performance prior to the spring of 1996. None of that evidence disproves the existence or veracity of the letter cited by Respondents, which related to an incident in March of 1996 and resulted in Respondents' letter of apology that April. (See also our analysis supra of Complainant's argument concerning Gale's exemplary record.) Moreover, we find that the evidence cited by the ALJ does not make it unreasonable to believe that the Respondents considered the incident of discourtesy, along with the other incidents they cited, as a basis for terminating Gale's employment. Additionally, the performance evaluation of September 5, which , based on its date and on Ventura's unrebutted testimony, was created less than a month before the decision to terminate Gale's employment and prior to Gale's protected activity, evidences Respondents' view (as of that time) of Gale's courtesy to patients. In that document, Respondents rated Gale as having deficiencies in the category of "courtesy." That rating is consistent with Respondents' citing of the discourtesy to a patient incident as a factor in her dismissal. It supports finding that Respondent's consideration of the discourtesy incident was genuine, rather than pretextual.
[Page 11]
The ALJ also indicated that Colbert's alleged statement, "nobody wants to get rid of or fire you" (made prior to the protected activity) was a factor in his conclusion that Gale's rudeness to the patient did not lead to her discharge. R. D. & O at 13. The reasons and context for Colbert's alleged statement, assuming it was made, were not established. However, the Colbert statement is not inconsistent with Respondents' considering this incident of rudeness when deciding to terminate Complainant's employment after the confrontation with Lapidus. The Colbert statement was not a promise to ignore Gale's past failings should an additional incident occur thereafter. We discuss infra whether Respondents' failure to discipline Gale or terminate her employment (until after the incident with. Lapidus) established pretext.
The ALJ dismissed the meal in the laboratory incident as pretext on the basis that it was an isolated occurrence, no disciplinary action was taken at the time, no evidence was presented showing that it was mentioned to Complainant and it preceded her release by over two months. R. D. and O. at 13. Again, these considerations do not call into question the existence of that incident. We discuss infra whether the fact that Respondents did not discipline Gale for the cited incidents prior to terminating her employment establishes pretext.
The ALJ further found that the memoranda at RX 10 and 11 did not "adequately" convey that Gale was confrontational and disrespectful, "but rather indicate her belief that she is bound to follow a certain policy." R .D. and O at 13. Our review of the memoranda in question leads us to a contrary conclusion. According to Lapidus's memorandum, Gale walked into the room where he was reading studies and said, "Oh you won't know." She then described a renal scan order to him, and he asked her to call the referring physician's office for clarification. She subsequently brought the same inquiry regarding the renal scan to Rondina, and Lapidus pointed out that he had already asked her to call the referring physician's office. Lapidus's memorandum states that Gale then replied, "First of all you can't tell me to do anything." When Rondina then asked, "What did you just say," Gale responded, "He doesn't even have a user's license," or "He can't tell me what to do. He's not on the license." The statements concerned radiology procedures and were said to and about a physician who was present and was responsible for delivering radiology services at the facility at the time. Taken together in context, we find that these statements indicate something other than, as the ALJ found, "her belief that she is bound to follow a certain policy." Rather, these statements indicate that Gale conveyed to the physician her belief that he was not knowledgeable ("oh you won't know"), that she was unwilling to follow the physician's directions (" you can't tell me to do anything"), and that she not only doubted the physician's authority, but may have belittled him ("he doesn't even have a user's license"or "he can't tell me what to do; he's not on the license"). We determine that, based on the statements from the physicians, particularly Lapidus, Respondents reasonably could have believed that Gale had been disrespectful and insubordinate.
[Page 12]
Ventura's testimony concerning Gale's outbursts in front of patients and coworkers, and her citing of a particular incident which occurred when the office was low on a particular kind of film, was discounted by the ALJ on the basis of a more contemporaneous memorandum which, he stated, "conveys little more than that Ms. Gale believed the office was low on the supply of film." R. D. and O. at 13. The memorandum reads, in pertinent part:
ON THIS DAY AT ABOUT 11 AM HEARD KATHY AT THE FRONT DESK LOUDLY SAYING SOMETHING ABOUT RESCHEDULING PATIENTS BECAUSE WE WERE OUT OF FILM. I STEPPED OUT OF MY OFFICE IMMEDIATELY TO STOP THIS CONVERSATION IN FRONT OF PATIENTS WAITING IN THE RECEPTION AREA. . . . WE DID NOT HAVE TO RESCHEDULE ANY PATIENTS.
RX 14 (June 15, 1996 memo from Ventura to Colbert).
Unlike the ALJ, we find that the memorandum supports Ventura's testimony concerning the incident and conveys more than a belief on Gale's part that the office was low on film. The memorandum provides evidence of Gale making an erroneous statement in a manner which could cause patients to believe that their appointments would have to be rescheduled because Respondents failed to have on hand material essential for conducting Respondents' business. The memorandum thus supports, rather than contradicts, Ventura's testimony citing the incident as an example of how Gale loudly made statements in front of patients which unfairly cast the company in a negative light. T. 148-149.
The misadministration of the radiopharmaceutical was discounted by the ALJ on the basis that Gale's testimony that she was told "there was no problem" was uncontested, and indicated that while an infraction took place, it was not deemed sufficiently errant to warrant disciplinary action. The ALJ also found that the lapse of over a month between the misadministration and Gale's dismissal provided support for this conclusion. Moreover, the ALJ "found no indication in the record that the infraction was raised with Complainant subsequent to her conversation with Mr. Murphy for the purposes of completing his report of the incident to the NRC." R. D. and O. at 13. The uncontested evidence shows that Gale injected a patient with the wrong isotope and that Respondents believed that she did so because she failed to obtain clarification when she did not understand the referring physician's order. T. 32, T. 155-160, RX 13. In addition, Gale herself testified that the Respondents put her under a directive following the incident that she "would never do another injection without a clear, written slip," that is "a clear, written script saying what are we supposed to do and why are we supposed to be doing it in the way of a Nuclear Medicine Diagnostic Study." T 33-34. The Respondents' citing of this incident as a reason for her dismissal is consistent with the unsatisfactory rating they gave Gale in the category of judgment, and the written statement on her performance evaluation that her "judgement and stability were of daily concern." CX 7.
[Page 13]
The ALJ similarly found that Respondents' complaints concerning Gale's "work attendance" were pretextual because "[t]here is no indication that Complainant violated Respondent's policy with regard to using sick leave; rather it is clear from Ms. Ventura's testimony that the sole infraction of Respondent's sick leave policy was that Ms. Gale failed to procure a physician's note for using one additional sick day, which was not cited as a reason for her discharge." R. D. and O. at 14. He further cited Gales' scheduling a substitute and the approximately 3.5 months between these absences and Gale's termination. R. D. and O. at 14. We find that the evidence is that Gale failed to provide required medical documentation for her absence of almost a full week in May, and that this was a violation of Respondents' sick leave policy. T. 180. RX 14 (June 15, memo from Ventura to Colbert). Moreover, Ventura testified that she was unable to reach Gale during that period. T. 150. Under the circumstances, we find that Respondents reasonably could have believed this was "absenteeism." Gale also was absent on sick leave for over a week in June. T. 151-52, RX 14. Further, although it is uncontradicted that Gale scheduled substitutes for part of the time she was absent, the evidence that Ventura had to seek substitutes and that tests had to be cancelled because of Gale's absences also was uncontradicted. T. 154-55, 183, RX 14 (June 15 memo). In addition, Ventura testified, without contradiction, that Gale's attendance record was poor compared to that of other technicians. T. 154. Consistent with the testimony and exhibit, Respondents rated Gale's attendance as deficient, and specifically noted on her performance evaluation that she had taken unscheduled leaves of absence without warning or following office policy regarding submitting an appropriate doctor's note. CX 7.
The absence of disciplinary action against Complainant prior to her protected activity does not establish that Respondents' alleged reasons for her discharge were pretextual. Ventura testified without contradiction that Gale was terminated under the same process as any other employee and that Respondent did not have a policy requiring it to bring decrements in an employee's performance to the employee's attention. T. 197. The ALJ's contention that the absence of prior disciplinary acts showed pretext assumes that Respondent had to take other disciplinary measures before dismissing Complainant. There was no evidence that Respondent had a policy or practice of progressive discipline, under which it imposed lesser sanctions prior to terminating employment, nor does the ERA require Respondents to have had such a policy or practice. Similarly, Respondents' failure to weigh the favorable comment of a patient in August against the earlier comment on Gale's rudeness, made by a different patient in March, does not establish pretext. "We [courts] do not sit as a super-personnel department that reexamines an entity's business decisions." Morrow v. Wal-Mart Stores, Inc. 152 F.3d 559, 564 (7th Cir. 1998). Section 5851 of Title 42 of the U.S. Code is a discrimination statute, not a code of sound personnel management.
[Page 14]
Ventura explained that the decision to fire Complainant was made because of "a combination of many instances, which we have gone through . . .. It was a culmination of all these things." T. 178-79 (emphasis added). However, by addressing each reason in isolation, and citing the length of time between each individual incident and Gale's dismissal (all occurred within a period of seven months, with the final incident occurring the day before Respondent terminated Gale's employment), we conclude that the ALJ failed to appreciate that Respondents' reasons were not separate or in the alternative, but were a "combination "or a "culmination ." In other words, we find that Respondents' proffered reasons were cumulative,5 with the September 25 confrontation with Lapidus constituting the final, and decisive, incident
In addition, the ALJ's holding that Respondents' proffered reasons were pretextual was inconsistent with his findings that: (1) Ventura's testimony explaining Respondents' motivation for the discharge, including her testimony that Complainant's protected activity was not a factor in her discharge; that she was not angry at Complainant for bringing the need for proper permits to her attention and that she viewed Complainant's action as appropriate, T. 174, 179, "was convincing and lacked contradiction," R. D. and O. at 8; and (2) Respondents' documentary evidence, containing Complainant's work record of declining performance, including the critical memoranda of Lapidus and Rondina, was unchallenged for its "verity." Id . at 12. (Ventura and Complainant were the only witnesses at the hearing.). Id . at 4.
Further, we note that both Gale and Ventura testified that Gale contacted the DEP at Ventura's request. T. 79, 174. Thus Respondents were not antagonistic to Complainant's protected activity. In fact, they specifically instigated a significant part of it. No adverse action was taken against Gale immediately following her protected activity, and her employment was not terminated until after an intervening event occurred, the confrontation with Lapidus. Under the circumstances, the fact that the discharge occurred within two weeks of the protected activity is insufficient to establish a violation of the Act.
We find that Gale engaged in protected activity under the ERA and that Respondents had knowledge of that activity. However, as we have concluded supra, Respondents have provided a credible non-discriminatory basis for discharging Gale (the reasons cited by Respondents, taken in totality). Gale has not established by a preponderance of the evidence that Respondents' explanation is pretext for discrimination or that more likely than not a discriminatory reason was a motivation for her dismissal by Respondents. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Thus Complainant has not proved by a preponderance of the evidence that her protected activities were a factor in her discharge. We therefore find that Complainant has not sustained her burden of proof.
[Page 15]
CONCLUSION
Since Complainant has not demonstrated by a preponderance of the evidence that she was discharged in contravention of the ERA, her complaint is DISMISSED.
SO ORDERED.
JUDITH S. BOGGS
Administrative Appeals Judge
WAYNE C. BEYER
Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[ENDNOTES]
1 This proceeding was originally brought against X-Ray Associates, Complainant's previous employer. In 1994 Respondents purchased X-Ray Associates and retained its name for the Toms River, New Jersey facility employing Complainant. The caption of this case was amended to reflect the proper Respondents. See Recommended Decision and Order at 2; Jan. 20, 1998 transcript (postponing hearing), at 5-6, 11-12, 25-27, 29.
2 Because we find that Complainant has not established that her protected activity was a contributing factor in her discharge, we do not address the question of dual motive under 42 U.S.C. § 5851(b)(3)(D), providing: "Relief may not be ordered . . . if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such [protected] behavior."
3 The ALJ stated that "where protected activity and an adverse action occur within a close period of time, that coincidence constitutes solid evidence of causation, an inference of a retaliatory motive is justified, and a prima facie case of discharge is established." R. D. and O. at 11. It is correct that close temporal proximity (of the protected activity and the adverse action) may be sufficient to establish an inference of a retaliatory motive for purposes of a prima facie case; however, standing alone, it is not "solid evidence" of causation attributable to retaliatory motive. Rather, the temporal proximity must be considered in the context of the specific facts and circumstances. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279; Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168 at 9.
4 See Complainant's pretext discussion in its brief to ARB at 16-18 ("Respondent supplies, on appeal, five reasons for termination. However, none of these was considered by Respondent as grounds for termination prior to the protected activity, and taken in light of Ms. Gale's exemplary employment history, are not enough to justify termination.").
5 I.e., "the plethora of reasons that have been enumerated previously," Respondents' initial brief to ARB at 23; "[i]n the aggregate," Respondents' reply brief to ARB at 9.