0120140561
06-29-2016
Chanell A.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chanell A.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140561
Hearing No. 410-2013-00048X
Agency No. 200I-0557-2012100237
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 17, 2013 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
On October 12, 2010, Complainant was hired as a VN-3 Nurse Practitioner at the Agency's Veterans Affairs Medical Center in Macon, Georgia, subject to a 2-year probationary period.
On December 6, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of sex (female) and in reprisal for prior EEO activity when:
1. from October 2010 to December 2010, on several occasions two Registered Nurses and Emergency Room (ER) Manager physically assaulted her, called her dumb, refused to help her with patient case, yelled at her, and made derogatory comments to her. The ER Manager also threatened to fire Complainant and "f*** her world up" and in October 2010, she told Complainant that her salary was too low;
2. from October 2010 to November 2011, the Business Manager attempted to intimidate her by constantly staring at her;
3. in January 2011, the Domiciliary Nurse Manager threw four chairs towards her while two other named nurses yelled and screamed rude comments to her; however, no action was taken when the matter was reported to the Chief of Staff and a named physician;
4. from January 2011 to July 2011, a physician ordered the nurses to abuse, harass, defame, torture and set her up for failure. The K.A. would not show up for their scheduled meetings, did not intervene when Complainant informed him numerous times that the two nurses would not allow her to see patients and she had to work frequently;
5. from January 2011 to November 4, 2011, the Human Resources Specialist (HR Specialist) and Registered Nurse interrogated her for hours at a time, tried to force her to resign and threatened to terminate her almost daily;
6. from January 2011 to November 2011, she was accused of driving drunk in a golf cart on the grounds of the Medical Center numerous times;
7. on February 14, 2011, a physician made sexual advances toward her when he repeatedly asked her to touch his ear, rub his shoulders and neck, repeatedly told her to go to his office, and repeatedly made threats to fire her after the incident was reported;
8. in February 2011, she was investigated by VA Police and subjected to a background search after the HR Specialist and Chief of Staff placed fabricated information in her personnel file and accused her being an imposter and a criminal;
9. in February 2011, she felt she was being tormented and harassed on a daily basis by a named nurse;
10. in February 2011, she learned that her computerized patient's notes could not be accessed;
11. in March 2011, the physician instructed her not to perform certain procedures on patients;
12. in March 2011, the HR Specialist instructed her on numerous occasions to provide documentation of her birth, nursing credentials and other legal documents that she submitted previously;
13. in March 2011, her personal nursing bag came up missing;
14. from March 2011 to November 2011, meetings were held to terminate her;
15. in April 2011, a named nurse told her that she would let her speak to the physician after she unwrap his legs from around him and later the nurse and physician both refused to assist her with an ER patient;
16. in April 2011, a computer programmer had to locate her electronic patient notes after Clinical Applications Coordinators tampered with her electronic patient files. Additionally, in September 2011 and October 2011, one of the Clinical Applications Coordinator did not want to get involved or help when Complainant told her that her notes were either moved or missing;
17. in April 2011, May 2011 and August 2011, Information Security Officer told her he did not want to get involved when she reported that her notes were missing from the electronic patient files;
18. on or about May 24, 2011, the physician yelled and waved his hands towards her as if he was going to hit her and the next day, he ordered her to attend a meeting and followed her almost all day;
19. in May 2011, the HR Specialist pleaded with her for several hours to not tell anyone how badly she harassed her and about the bad things that were done to her;
20. in June 2011, the HR Specialist and the Performance Improvement Coordinator interrogated her, told her that she was incompetent and to resign or be terminated;
21. in June 2011, she was reassigned to Fee Basis Service without an explanation;
22. in June 2011, the Fee Basis Nurse came into her office, yelled at her and nearly hit her with the door;
23. from June 2011 to August 2011, the Fee Basis Nurse made her stuff envelopes;
24. from June 2011 to September 2011, the Fee Basis Nurse threatened to have her fired;
25. from June 2011 to October 2011, the Chief of Staff and Medical Center Director held up her EEO claims by not allowing the EEO Manager the opportunity to resolve the issues;
26. in July 2011, the HR Specialist and an unidentified detective told county health department officials that Complainant was an imposter practicing as a Nurse Practitioner, she had a twin, and that none of her documents were legal;
27. from July 2011 to November 2011, several management officials harassed her by repeatedly walking by her office or standing in the hallway near her office, staring and laughing at her and by continuously following her;
28. in July 2011, the Associate Chief Nurse attempted to intimidate her by following her for almost an entire week;
29. in July 2011, personal items were missing from her desk;
30. in August 2011 and September 2011, the Fee Basis Nurse instructed her to sit at a small desk in one position all day, to leave only to go to the bathroom, get her lunch and bring it back to the work unit, not to use the phone and denied her computer access;
31. on September 15, 2011, ,the Fee Basis Nurse yelled at her and nearly hit her in the head when she swung open a door;
32. in October 2011, an unidentified Office of Resolution Management (ORM) employee informed her that someone using her name called ORM and withdrew the claims that were raised with an EEO Counselor in March 2011;
33. in October 2011, two HR Specialists gave her a fictitious copy of her personnel file;
34. in October 2011 and January 2012, the Chief of Staff altered her MyPay account several times to reflect she was paid $38,000 and her termination date was changed several times;
35. on October 18, 2011, she was advised that a Professional Standards Board was scheduled to conduct a summary review of her performance;
36. on October 18, 2011, the HR Secretary, HR Specialist and a nurse gave her and her representative different dates to attend a meeting about her proposed removal;
37. on November 4, 2011, four VA Police Officers escorted her from her work area;
38. in November 2011, she was not issued a termination notice;
39. effective November 18, 2011, she was terminated during her probationary period;
40. on January 12, 2012, the Chief of Staff sent her a threatening letter and a bill for $75.00 for a pager; and
41. on or about January 14, 2012, instead of being paid $7,000.00 for accrued leave, she was paid only $4,568.00.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On an unspecified date, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant's co-workers and Agency officials (the Registered Nurses, ER Manager, Business Manager, Domiciliary Nurse Manager, physician, HR Specialists, and Fee Basis Nurse) denied subjecting Complainant to harassment. For instance, one of the Registered Nurses stated that she never verbally abused or assaulted Complainant. The Registered Nurse also stated that she never refused care of any veteran that has been treated by Complainant.
The Business Manager denied trying to intimidate Complainant by staring at her. The Business Manager stated that at that time Complainant did not work in her unit and that she only came by to talk with her chief on two or three occasions.
One of the HR Specialists denied threatening Complainant to resign from Agency employment. The HR Specialist that HR contacted Complainant to clarify her date of birth and to bring in a supporting documentation to the Employee Relations Specialist that handles background investigations. After several attempts of requesting this information from Complainant and no response, the Employee Relations Specialist conducted a fact finding investigation. The HR Specialist stated that she again met with Complainant and her union representative and requested that Complainant bring in supporting documentation so Agency management can properly identify her and to complete her I-9 for her official personnel folder. The HR Specialist stated she never asked Complainant to bring in her nursing credentials or any other legal document.
Regarding claim 26, the HR Specialist denied going to the county health department with a detective to let them know that Complainant was an imposter, she had a twin and that none of her documents were legal. The HR Specialist stated that she knows nothing about Complainant having a twin.
With respect to Complainant's allegation that the Chief of Staff altered her MyPay account several times (claim 34), the HR Specialist stated that she had no idea what Complainant was talking about. The HR Specialist further stated that the Chief of Staff has no access to this database.
Regarding claim 38, the HR Specialist stated that in November 2011, Complainant refused to sign and receive a copy of the termination notice. The HR Specialist stated that a copy of the decision letter was given to her union representative and mailed certified to her mailing address on file.
Regarding claim 40, the HR Specialist stated that she was not aware of a threatening letter form the Chief of Staff, however, Complainant failed to turn in her pager when she was terminated from Agency employment.
Regarding claim 41, the HR Specialist stated that she was not involved with Complainant's accrued payments. However, Complainant was entitled for lump sum payment of all accrued annual leave.
The Fee Basis Nurse (Nurse) denied subjecting Complainant to harassment. The Nurse stated that all of Complainant's assignments were given by her supervisor and that she had no control in regard to Complainant's work space. The Nurse stated that during the relevant period, Complainant would leave for lunch for long periods of time.
In his memorandum dated July 24, 2011, the physician denied subjected Complainant to sexual harassment (claim 7).2 Specifically, the physician stated that on one occasion, Complainant thought that one patient may have skin cancer but was having difficulty time describing the condition of the patient's ear. The physician stated that he told Complainant that he had actinic keratosis on his left ear and she should feel the top of her ear, and then feel the top of his left ear for comparison. The physician stated that it was a "simple teaching moment." The physician stated at that time Complainant did not felt uncomfortable or that she did not want to do it.
The physician stated that he spent many days the first two months Complainant was in his service going over patient evaluations and treatments with her, and trying to train her to be effective in the job she was hired for. The physician stated, however, Complainant was not up for the task as evidenced by her short tenure in the emergency department where she was not productive and lacked basic clinical and diagnostic skills.
The physician acknowledged that on May 24, 2011, he ran in the hallway looking for Complainant because he needed to talk with her (claim 18) about her charts. The physician stated he had concerns with Complainant's clinical competence after reviewing her charts with misdiagnosis and inappropriate treatment. Furthermore, the physician stated that Complainant made allegations that the nurses were coming in work drunk and trying to get her into trouble.
The AJ noted that according to the Chief of Staff (Chief), she denied subjecting Complainant to harassment. For instance, the Chief stated that in regard to claim 7, Complainant never told her that the physician was sexually harassing her. The Chief further denied hearing rumors that the physician was having affairs with anyone at the Medical Center.
Regarding claims 8 and 12, the Chief stated that the HR Specialist complained to her that Complainant provided two different birth dates which is the reason the HR Specialist requested Complainant to bring her birth certificate as part of the background check procedure. The Chief stated that the issue was later resolved. The Chief denied accusing Complainant of being an imposter.
Regarding claims 14 and 35, the Chief stated that the meetings were part of the credentialing and privileging practices of the Medical Center. The Professional Standards Boards meetings were held because of Complainant's unresolved performance issues. The purpose of the meetings was to go over Complainant's performance issues and since it was a review of Complainant, she was not invited to the meetings. Specifically, the Chief stated that because Complainant was having performance issues on August 9, 2011, she was placed on a Focus Professional Practice Evaluation (PPE). Complainant's performance evaluation was given to Human Resources and it was recommended that a Nursing Summary Review Committee be convened to make recommendations about her probationary employment.
Complainant was removed from patient care services and given an administrative detailed assignment in a non-patient care because of the concerns they had about her quality of patient care.
Regarding claim 23, the Chief stated that stuffing envelopes was probably one of the administrative duties assigned to Complainant.
Regarding claim 37, the Chief stated that she was informed that Complainant was escorted from her work area because of the nursing board's recommendation to terminate her during her probationary period. The Chief could not confirm that four police officers escorted Complainant from her work area.
Regarding Complainant's termination (claim 39), the Chief stated that her role was to submit Agency management's recommendations to the nursing board and the board reviews all the documents and from there submit their recommendation to the Director. The Chief stated that it was her understanding that Complainant was terminated during her probationary period because of patient safety concerns, unprofessional conduct and unresolved performance issues.
Regarding claim 40, the Chief denied sending Complainant a threatening letter and a bill for $75.00 for a pager.
Regarding 41, the Chief denied having any involvement in paying Complainant $4,568.00 for accrued leave instead of $7,000.00.
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if she had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 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
June 29, 2016
__________________
Date
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.
2 The record reflects that during the investigation, the physician was deployed in Iraq and the investigator was unable to interview him. However, the physician submitted a memorandum in response to Complainant's allegations.
3 On appeal, Complainant does not challenge the February 3, 2012 partial dismissal issued by the agency regarding six other claims (that she was subjected to harassment and a hostile work environment on the bases of sex and in reprisal for prior EEO activity when the union representatives refused to assist when she was being threatened and they tried to convince her to resign; in February 2011, the EEO Manager and detective traced her family tree; in February 2011 and March 2011, the Chief traced her family tree and contacted the Medical College of Georgia to determine whether her family members attended school there; from May 2011 to June 2011, union officials would not return her letters of commendation; on October 18, 2011, her former representative old officials to fire her, called her names and shouted obscenities at her and did not show up for a meeting with Agency officials; and the union never processed her grievance). Therefore, we have not addressed these issues in our decision.
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