Cathy V.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 8, 2017

0120160048 (E.E.O.C. Dec. 8, 2017)

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

Cathy V.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120160048

Hearing No. 490-2014-00166X

Agency No. 200H-0731-2013104546

DECISION

On September 14, 2015, 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
August 10, 2015, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nurse 3 Revenue
Utilization Review (RUR) Nurse at the Agency’s Mid-South Consolidated Patient Account
Center (CPAC) in Smryna. Tennessee. On November 20, 2013, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of race (Black) and in
reprisal for prior protected EEO activity when:

(1) on August 23, 2013, her supervisor (S1) issued Complainant an admonishment;

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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(2) on November 8, 2013, S1 issued her a reprimand;

(3) on December 2, 2013, she became aware that she had been charged five hours of
Absent Without Leave (AWOL) on November 14, 2013;2 and

(4) she was subjected to a hostile work environment based on the following events:

(a) on January 2, 2013, S1, accused Complainant of leaving four cases untouched,
when they were not on Complainant's list;
(b) on January 3, 2013, S1 issued Complainant a written counseling;
(c) on January 5, 2013, S1 altered Complainant’s work assignment;
(d) on January 8, 2013, S1 made a “threatening gesture” to Complainant while
stating, “Don't let this happen again,” when Complainant arrived two minutes late
for work;
(e) on July 30, 2013, S1 monitored and negatively critiqued the Complainant’s
work on a volunteer assignment and ordered Complainant to complete mandatory
“Blackboard” (BB) training with a short turnaround time;
(f) on August 23, 2013, S1 issued Complainant an admonishment;
(g) on September 12, 2013, S1 accused Complainant of being disrespectful
towards her while in the presence of another employee;
(h) on November 8, 2013, S1 issued Complainant a reprimand; and
(i) on December 2, 2013, Complainant became aware she had been charged five
hours of Absent Without Leave (AWOL) on November 14, 2013.

After 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 but subsequently withdrew her request.
Consequently, 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.

FACTUAL BACKGROUND

The record shows that Complainant had filed four EEO complaints prior to the current EEO
complaint. None of those prior EEO complaints involved S1 or any other management official
relevant to the claims herein. The most recent prior EEO complaint was filed on July 14, 2010,
and withdrawn on August 2, 2010. The record shows that the first time S1 and Complainant

2 The Agency dismissed an additional claim pertaining to a January 3, 2013, written counseling
on the basis that it was not raised with an EEO counselor within 45 days from the day the
counseling occurred in accordance with 29 C.F.R. § 1614.107(a)(2). We affirm this dismissal
and note that the facts underlying this claim were investigated and considered as part of
Complainant’s harassment claim.
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worked together was when S1 started her position as the RUR Nurse Manager on November 19,
2012. However, the record indicates that S1 met Complainant sometime in 2011.3

The undisputed record shows that S1 began in her position in November 2012 to overhaul the
unit, which had substantial backlogs and deficiencies. The documentary and testimonial
evidence in the record supports the finding that S1 was very focused on her mandate to eliminate
the backlog and delinquent accounts in CPAC and she was successful in doing this. It is also
clear from the evidence in the record that S1 put a lot of pressure on the nurses to perform at a
higher level than had been expected of them prior to her arrival.

On December 20, 2012, Complainant received a written counseling for unacceptable
performance. S1 cited two emails, dated November 21, 2012 and November 28, 2012, in which
she had advised Complainant that delinquent cases were not acceptable. S1 also cited an email
dated December 3, 2012, where she requested that Complainant complete several cases and told
her to notify her when they were finished. The undisputed record shows that Complainant
neither communicated with S1 nor completed the assigned cases.

Documentary evidence supports the finding that Complainant believed that S1 exhibited physical
signs of hostility and anger toward her in November 2012 pertaining to Complainant bringing
her cell phone to a meeting that S1 called for all nurses and in early January 2013 surrounding
the failure of Complainant to respond to one of S1’s emails.

On May 9, 2013, after Complainant complained to management officials that she was enduring
constant abuse and hostility, and after obtaining the assistance of a union representative (U1),
Complainant and S1 engaged in mediation through the Alternative Dispute Resolution process to
resolve their disputes and agreed to meet once a week to work on their communication and repair
their relationship.

On July 2, 2013, Complainant was issued a proposed admonishment for failure to follow
instructions. Complainant responded in writing and asserted that S1 continued to create a
hostile, punitive work environment, fostered poor communication, lacked clarity, and failed to
seek resolution to workplace issues. On August 23, 2013, S1 sustained the proposed
admonishment.

On September 13, 2013, Complainant initiated contact with an EEO counselor in the pending
matter. On October 15, 2013, S1 issued complainant a three-day suspension for inappropriate
conduct, failure to complete duties as assigned, and absence from her work station. In a letter
dated November 8, 2013, the Chief Operating Officer (COO)4 sustained the charge that
Complainant displayed a negative attitude regarding an assignment that was equally distributed
among co-workers and that she failed to complete an assignment. After speaking with all
relevant witnesses and concluding that both Complainant and S1 contributed to the breakdown in

3 The record is devoid of information as to the circumstances of this encounter.
4 COO is Complainant’s second-line supervisor for personnel decisions.
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communication, COO did not sustain the charge that Complainant rudely interrupted S1 while in
a private meeting to notify her of computer problems and interacted with S1 in a terse manner.
COO also did not sustain the charge that Complainant was absent from her workstation when she
located Complainant in the breakroom shortly thereafter. COO mitigated the proposed three-day
suspension to a reprimand. On November 14, 2013, S1 charged Complainant with five hours of
Absence without Official Leave (AWOL) after failing to follow S1’s instructions pertaining to
requesting leave while she was out of the office.5

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 such as this, 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). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We assume for the purposes of this decision that Complainant established a prima facie case of
discrimination and reprisal. We note that the record shows that during the relevant time-frame,
there were approximately forty nurses under S1’s supervision. There were approximately nine in
Complainant's “group,” two of whom were Black, one was Hispanic, and the rest were
Caucasian. The evidence of record indicates that of the four nurses from CPAC who were
disciplined for performance issues, two were Black (both engaged in EEO activity or had a
current case pending) and two were Caucasian (one of whom had engaged in the EEO process).

5 The undisputed record shows that S1 instructed her staff (verbally and by email) to notify the
CPAC Director (S2) if they needed to take emergency leave while she was out of the office. It is
also undisputed that Complainant did not follow these instructions but instead notified the
supervisor assigned to the workload on the day she took leave.
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We agree with the Agency’s analysis and finding that Complainant failed to establish
discrimination or retaliation as alleged. Specifically, with respect to the disparate treatment
claims, the Agency concludes that management officials articulated legitimate, non-
discriminatory reasons for its employment actions which Complainant did not prove to be pretext
or motivated by discriminatory/retaliatory. We find that the evidence in the record is sufficient
to establish that management met its burden to articulate legitimate, non-discriminatory reasons
for its employment actions.

Claim 1 - Admonishment

With respect to Claim 1, the Agency notes that S1 testified that she issued the reprimand to
Complainant for failure to follow instructions pertaining to her June 6, 2013 directive that she
finish all her accounts within the appropriate time-frame and notify her if she was unable to
complete them. The undisputed record shows that as of June 13, 2013, Complainant had not
notified S1 that she had four delinquent accounts remaining. Despite additional warnings,
Complainant continued to have delinquencies on her list. While Complainant asserts that
numerous other nurses also frequently had delinquencies, there is no assertion that any of these
nurses failed to follow S1’s directive to notify S1 by a certain time each day if deficiencies
remained.6

S1 testified that she considered Complainant’s prior written counseling in proposing and
sustaining the admonishment. In addition, the undisputed record shows that with respect to each
disciplinary action alleged herein, S1 consulted with a Human Resources Specialist who
reviewed each personnel issue presented by S1, decided the appropriate proposed disciplinary
action and drafted the proposed and final disciplinary action.7

With respect to Claim 1, it is undisputed that Complainant failed to respond to the email or had
delinquent cases on the day in question. We also find the record devoid of evidence that S1 was
aware of Complainant’s prior EEO activity that concluded in August 2010.8

Claim 2 - Reprimand

6Also, S1 testified that the other nurses did not continue to have repeat delinquencies. In
addition, S1 explained that Complainant’s progressive discipline was not only about delinquent
accounts, but was also related to Complainant failing to communicate with her when asked to,
and she did not have this issue with the rest of her staff. S1 testified that the other nurses came to
her when they needed help or when they realized their work was not going to get completed so
she could assign help or help them herself.
7 S1 testified that she was not trained in how to implement appropriate discipline and relied
heavily on the human resources department for guidance.
8 The record is also devoid of evidence that Complainant raised any EEO-related matters when
she engaged in Alternative Dispute Resolution in May 2013 or otherwise engaged in protected
EEO activity prior to initiating EEO contact on September 13, 2013.
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With respect to Claim 2, the record shows that S1 proposed a three-day suspension for: (a)
inappropriate conduct; (b) failure to complete duties as assigned; and (c) absence from her work
station. The record shows that the Agency presented a legitimate, non-discriminatory reason for
the actions in Claim 2.

With respect to Complainant’s first charge (inappropriate conduct), the record shows that on or
about September 10, 2013, S1 assigned a batch of cases equitably among her staff, including
Complainant. Although Complainant completed the assigned cases, S1 believed that she
“displayed a negative attitude, repeatedly arguing that the assignment was overwhelming.” With
respect to a second incident in support of the first charge (inappropriate conduct), S1 believed
that Complainant displayed hostility in attitude and demeanor when communicating computer
problems to her on September 12, 2013. S1 reported that Complainant interrupted her when she
was in a meeting and gave her terse responses to her inquiries about the computer problem. S1
described Complainant's tone of voice as “rough.”9

The Agency articulated a legitimate, non-discriminatory reason for the second charge (failure to
complete duties as assigned). Specifically, S1 asserts that on or about October 1, 2013,
Complainant failed to complete the assigned Prescription Validations for Oklahoma City. S1
asserts that because of Complainant’s failure, she had three delinquent Prescription Validations.

In the third charge (absence from work), S1 asserts that on September 12, 2013, Complainant
interrupted her meeting to inform S1 of computer issues that Complainant was having. S1 further
asserts that after her meeting, she attempted to locate Complainant to obtain additional
information regarding the issue because was going to submit a help desk ticket for Complainant.
S1 asserts that she waited at Complainant’s cubicle for ten minutes because Complainant was not
there. S1 states that she then left Complainant’s cubicle and later returned to find that
Complainant was still not there. S1 further asserts that she located Complainant in the break
room at 8:30 a.m., and she was not authorized to take a break at that time.

We find that the facts for the substantiated charges are supported by the evidence in the record.
S1 testified that Complainant displayed a negative attitude, repeatedly arguing that the
assignment was overwhelming, even though the workload was shared with Complainant's co-
workers. The record is devoid of evidence that any other nurse complained about the workload
and COO sustained this charge.

In addition, it is not disputed that Complainant failed to complete her assigned Prescription
Validations which is the basis of the second charge. Complainant asserts that many other nurses
often had delinquents but were not treated as harshly by S1 as she was. S1 testified that
Complainant had delinquents more than the other nurses and that Complainant often failed to

9 After speaking with various witnesses, COO found both S1 and Complainant contributed to the
suboptimal interaction between the two and did not sustain this specification in the proposed
suspension.
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communicate the fact that she would not be finished with her assigned tasks before the
delinquents occurred. The record shows that S1 was brought in to CPAC to eliminate the
delinquencies. The record shows that S1 needed to know ahead of time what was not going to
get done so that she could bring in help (either from other nurses, or S1 herself, if necessary) to
prevent delinquencies from happening in the first place. The record shows that eliminating the
occurrence of delinquencies was a critical part of S1’s mission. The record further shows that
Complainant failed to communicate to S1 potential delinquents prior to the delinquents occurring
as instructed, or the potential to miss other deadlines before the deadline had passed (e.g., S1
gave Complainant one week to complete Blackboard training, but she did not notify S1 of the
failure to do so until after the deadline passed). We do not find sufficient evidence of pretext
with respect to this charge.

With respect to the absence from work charge that COO did not find substantiated, the record is
devoid of evidence that the facts as described by S1 did not occur. The record shows that the
charge was removed because it was an overreaction by S1 to the earlier incident to which COO
felt both individuals contributed. Complainant asserts that she was treated differently than her
Caucasian co-worker (C1) who was in the breakroom with Complainant. However, the record
does not support the conclusion that C1 is a proper comparison as she was not similarly situated
to Complainant at that time. The record shows that S1 was focused on Complainant’s absence
from her workstation because of the incident that occurred just before the breakroom incident.
S1 also testified that she went to Complainant’s workstation twice to follow up with the
computer issues that Complainant reported and ultimately found her in the breakroom. The
record is devoid of evidence to suggest that S1 had any reason to think that C1 was away from
her desk for a substantial time like Complainant had been or that C1 had exhibited a negative
attitude to S1 or failed to complete her cases two days prior. In addition, the record is devoid of
evidence that C1 had a history of failing to timely communicate with S1 as instructed. While S1
likely overreacted to the perception that Complainant was not respecting her authority because of
Complainant’s words and/or failure to follow S1’s instructions, the evidence in the record is
insufficient to support the finding that Complainant’s race or prior EEO activity was the
motivation behind this charge.

Claim 3 - AWOL

With respect to Claim 3, the Agency notes that the undisputed record shows that sometime in
November 2013, the entire staff, including Complainant, received an email indicating that in
S1’s absence, all leave requests were to be made to S2. Both S1 and S2 testified that the
employees were all on notice about the leave reporting requirements. The undisputed record also
shows that Complainant left work early on November 14, 2013, without obtaining the prior
approval from S2. Accordingly, S1 charged Complainant with five hours of AWOL for failure
to report leave to the appropriate Individual.10 It is not disputed that Complainant failed to

10 S2 noted that Complainant and an unnamed co-worker were initially erroneously charged with
AWOL. According to S2, this was corrected to reflect that Complainant was charged with Leave
without Pay (LWOP).
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follow instructions pertaining to leave. The record shows that the other nurse who failed to
follow S1’s instructions pertaining to leave was also initially charged AWOL. Both AWOL
charges were later corrected to reflect LWOP.

We find that Complainant failed to present sufficient evidence to prove pretext or that S1 was
motivated by racial or retaliatory animus with respect to any action alleged in Claims 1-3. Even
assuming the record establishes that Complainant was singled out for harsher treatment, we find
that Complainant did not establish that she was singled out for harsher treatment because of her
race. We agree with the Agency that the record is devoid of any suggestion that S1 harbored
racial animus towards Complainant or anyone else. The record shows that S1 disciplined both
Caucasian nurses and Black nurses.

Although Claims 2 and 3 occurred shortly after Complainant initiated EEO counseling in
September 2013, the record shows that conflicts over performance issues and complaints about
attitude between S1 and Complainant began in November 2012 and escalated throughout 2013.
The record shows no obvious increase in S1’s behavior toward Complainant after her EEO
contact in September 2013. Accordingly, there is insufficient evidence to support the conclusion
that S1’s post September 2013 behavior was motivated by unlawful retaliatory animus.

Moreover, the record supports the conclusion that to the extent that S1 overreacted to
Complainant’s performance deficiencies or conduct, it was due to S1’s poor
management/communication skills and the personality conflict that ensued, rather than any racial
or retaliatory animus on the part of S1.

Harassment Claim

For similar reasons set forth above, the record does not support the conclusion that any of the
alleged incidents of harassment were motivated by Complainant’s race or prior EEO activity.
The Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993) that Complainant’s claim of hostile work environment must fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the Agency were motivated by
discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept.
21, 2000).

CONCLUSION

Accordingly, 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 that
Complainant did not establish that she was subjected to discrimination as alleged.

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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.
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.
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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. 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

December 08, 2017
Date