Cleo Q.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJun 13, 20190120180891 (E.E.O.C. Jun. 13, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cleo Q.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120180891 Hearing No. 420-2015-00195X Agency No. 200I-0521-2014104238 DECISION On January 16, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 19, 2017 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., 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. BACKGROUND On January 12, 2014, Complainant was hired by the Agency as a Registered Nurse at the Birmingham Veterans Affairs Medical Center in Birmingham, Alabama, subject to a temporary appointment.2 On July 31, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. 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 temporary employees may be separated from employment at any time upon notice in writing from the Agency. 0120180891 2 On November 6, 2014, Complainant filed a formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American), sex (male), disability, age (over 40), and in reprisal for prior EEO activity when: 1. on January 28, 2014, although Complainant was hired as a Registered Nurse, the Charge Nurse initially only assigned him to duties as a patient “sitter;” 2. on January 29, 2014, the Nurse Manager (“Manager”) did not want him to work on Four Main and used reverse psychology, when she stated, “You’re not going to quit on us [Complainant] are you, like [male employee]?;”3 3. on January 28, 2014, management denied him an opportunity to complete his orientation process in accordance with the Orientation and Feedback Tool for Registered Nurses; 4. on February 4, 2014, the Charge Nurse stated to Complainant “I can’t find anyone who wants to precept you.” She then assigned Complainant to a Preceptor who had not attended preceptor training classes and did not have any experience as a preceptor; 5. on February 4, 2014, Complainant and the Preceptor were assigned over five patients per shift, which left no time for breaks or proper instructions on the policies and procedures of the unit. The Preceptor informed Complainant, “If you take all of your breaks, the other nurses won’t see you as a team player and won’t help you if you need help;” 6. on February 12, 2014, the Manager asked Complainant “What nursing school did you graduate from - did you have trouble passing the Nursing Clinical Exam (NCLEX) exam?;” 7. on February 12, 2014, the Manager stated to Complainant “If you don’t work out I can get rid of you in a year, and it would be up to [Chief Nurse] to keep you for another year;” 8. on March 14, 2014, the Charge Nurse gave Complainant an incomplete Handoff Report sheet, and acted very irritated and hostile toward him, blowing her breath at him and refusing to explain the Handoff Report. The Nurse Charge also stated “You should have been taught how to complete the handoff sheet by [Preceptor 1];” 3 The record reflects that Complainant alleged that the named male employee quit working for the Agency after two weeks. 0120180891 3 9. on March 18, 2014, when Complainant asked the Manager why his training was not being conducted properly, she stated “Don’t worry about that, I knew you were a new nurse without experience when I hired you;” 10. on April 10, 2014, a co-worker (“Co-worker 1”) pointed at Complainant and yelled “You better get that patient discharged;” 11. on April 22, 2014, the Co-worker 1 refused to help Complainant transfer a patient to a skilled nursing facility, forcing Complainant to attempt to transfer the patient without any guidance; 12. on April 18, 2014, the Charge Nurse refused to help Complainant administer an unfamiliar medication, telling him to “look it up,” and later that day the Charge Nurse accused Complainant of trying to give her uncapped medication; 13. on June 25, 2014, when Complainant had data missing from the Input and Output Rounding sheets, another co-worker (“Co-worker 2”) yelled at him “How long have you been in training? You should have been off training by now!;” 14. on July 18, 2014, the Co-worker 1 told Complainant in a loud voice “You better get that patient to his room;” 15. on July 18, 2014, a co-worker (Co-worker 3) took Complainant’s computer cart while he was using it to administer patient medications and yelled at him because he logged off the computer; 16. on July 27, 2014, when Complainant’s third preceptor (“Preceptor 3”) provided an assessment of Complainant’s work performance to the Manager that his “documentation, charting, and medication pass were good and done timely,” the Manager continued to keep Complainant in orientation; 17. on August 29, 2014, the Co-worker 3 yelled at Complainant in front of a patient and the patient’s family, “You need to hurry up because you have an admission to do;” 18. on August 30, 2014, the Preceptor 3 told Complainant to get “ready for hell” when he was assigned to provide care for the maximum patient load and worked the entire shift alone unsupervised without getting a break; 19. on August 30, 2014, Preceptor 3 referred to Complainant in a demeaning manner when she stated “Come on, Boy” in front of two co-workers; 20. on September 5, 2014, Complainant was instructed to attend a Summary Review Board that was conducting a review of his performance during his probationary period and making recommendations concerning his retention or termination; 0120180891 4 21. on September 12, 2014, the Manager gave Preceptor 3 documents to complete Complainant’s orientation evaluation starting from July 25, 2014, which was not completed on a weekly basis; 22. on September 13, 2014, Preceptor 3 informed Complainant that he was performing good enough to come off orientation in a couple weeks. However, on September 18, 2014, during his first evaluation feedback since July 29, 2014, the Manager told him that his orientation would continue because his evaluations were not completed on a weekly basis; 23. on September 26, 2014, the Chief Nurse issued Complainant a Termination Notice with an effective date of October 10, 2014; 24. on January 28, 2014, after an upset patient’s family told Complainant not to be like the other nursing staff, the Manager sarcastically stated to Complainant in front of the nursing staff, “[Complainant] don’t be like the other nurses;” 25. on August 29, 2014, during morning report, another Charge Nurse (“Charge Nurse 2”) gave assignments to Complainant’s co-worker but did not give Complainant an assignment; 26. on August 29, 2014, Complainant was scheduled to work 1:00 a.m. to 3:30 p.m. but ended up not leaving until 5:00 p.m.; 27. on March 8, 2014, Preceptor 1 forged Complainant’s signature and falsely documented he had completed six weeks of orientation feedback; 28. on March 14, 2014, the Charge Nurse falsely documented that Complainant was not able to change a diaper, clean a patient properly, and that he did not know the procedure for tube insertion; 29. on March 26, 2014, Preceptor 1 falsely documented that Complainant could not retain information for EKGs, flush IV’s and hang fluids, draw blood from lines, chart and perform the required Patient Health Evaluations, conduct pain, VA Nursing Outcomes Database (VANOD) (skin) and vital sign check order every two hours, and that he had problems prioritizing after being made aware 30 minutes prior and he was unable to get reports; 30. on April 1, 2014, the Nurse Educator falsely documented that Complainant’s knowledge was deficient in several areas of learning, retaining information, starting IVs, drawing blood, and using same needle several times; 0120180891 5 31. on April 10, 2014, the Nurse Educator falsely documented Complainant as a no- show; 32. on April 16, 2014, another co-worker (“Co-worker 4”) falsely documented that Complainant administered medication at the wrong time, tried to administer medication after it would not scan, and attempting to administer medication on the wrong location. 33. on April 18, 2014, the Charge Nurse falsely documented that Complainant did not understand irrigation assessment, Foley insertion site and presence of clots, the rate of 1-minute administration, the protocol for administering Metoprolol IV, medication administration safety, needle selection, and not charting in timely manner; 34. on April 21, 2014, the Manager badgered and harassed Complainant about a needs assessment list; 35. on April 29, 2014, the Manager did not conduct weekly conference review of Complainant’s progress but falsely documented that he has a lack of recall, issues relating to clinical assessment and medication administration; 36. on April 29, 2014, the Manager falsely documented that Complainant agreed to an extension of his orientation; 37. on April 29, 2014, Co-worker 1 documented only one orientation feedback for Complainant during the periods of April 29, 2014 through May 29, 2014, and she incorrectly dated Complainant’s orientation feedback for April 27, 2014 as July 29, 2014; 38. on May 5, 2014, the Nurse Educator falsely documented that Complainant was deficient in knowledge of medications that are not crushed; 39. on May 15, 2014, the Manager extended Complainant’s orientation for three more weeks without conducting a follow up conference on May 28, 2014, as stated in Orientation Competency; 40. on July 29, 2014, Co-worker 1 documented information regarding Complainant’s disability on his orientation feedback tool; 41. on July 29, 2014, Co-worker 1 documented two weeks of orientation feedback for Complainant while only submitting one orientation feedback, and she did not conduct weekly progress interviews with him; 42. on August 20, 2014, the Manager did not include signed copies of the Medical Center’s orientation competency policy in Complainant’s termination file; 0120180891 6 43. on August 20, 2014, the Manager made false statements on Complainant’s proficiency report about his level of knowledge, skill and ability; 44. on August 20, 2014, Complainant became aware of reports of contact submitted by co-workers which were included in his termination file; 45. on August 20, 2014, the Manager included a false document (BVAMC Orientation Competency) document in Complainant’s termination file which did not consist of his signature and Performance Expectation information; 46. on August 31, 2014, Complainant was called to work on his scheduled off day; 47. on September 18, 2014, Preceptor 3 falsely documented Complainant had completed seven weeks of orientation feedback and she did not conduct weekly conference to review his progress; and 48. on September 22, 2014, although Complainant submitted additional supporting information to the Summary Review Board that was withheld from his termination file, the Board recommended terminating him. Complainant identified his disabilities as nerve damage right hand and anxiety disorder. On January 23, 2015, the Agency issued a partial dismissal. The Agency accepted claims 2 and 5-23 for investigation. The Agency, however, dismissed claims 1, 3 and 4 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency nonetheless determined that claims 1-23 were related to Complainant’s claim of harassment and would be included in the harassment analysis. On March 25, 2015, The Agency issued a Notice of Amendment. Therein, the Agency accepted claims 24–26 for investigation. In addition, the Agency dismissed claims 1, 3, 4, 25 and 26 for untimely EEO Counselor contact. The Agency, however determined that claims 1-26 were related to Complainant’s harassment claim and that it would be included in the harassment analysis. On April 23, 2015, the Agency issued a Notice of Amendment accepting claims 27-48 for investigation. The Agency dismissed claims 1, 3, 4, 25 and 26 for untimely EEO Counselor contact. Nevertheless, the Agency determined that it would address claims 1-48 because they were related to Complainant’s harassment claim. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a Motion for a Decision 0120180891 7 Without a Hearing.4 On December 4, 2017, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s decision. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. The record developed during the investigation of the complaint showed Complainant began his employment with the Agency on January 12, 2014, on a temporary appointment. On April 18, 2014, Complainant learned that the Manager recommended an extension of his orientation. During his orientation, Complainant was consistently assigned more than three patients daily and “as many as [five] patients to provide total care.” Complainant often felt that he was running behind. On April 29, 2014, the Manager extended Complainant’s orientation period “to better meet [his] clinical needs,” “to assist [Complainant] to improve and complete the orientation process.” Complainant was placed on notice that failure to progress and complete the orientation is a serious matter and as a probationary employee, “[f]urther occurrences could result in [his] termination from VA employment.” 4 The record reflects that in his response to the Agency’s Motion for Summary Judgment, Complainant withdrew race, sex and disability as bases of his discrimination claims. 0120180891 8 Complainant’s Proficiency Report for the period from January 12, 2014 to June 30, 2014 was signed by the Chief and Manager. Complainant was scored overall “Unsatisfactory” in “Nursing Practice” and “Overall Rating,” and was scored “Satisfactory” in “interpersonal relationships.” In the report, the Manager wrote that after 26 weeks of orientation, Complainant was unable to “retain clinical knowledge and…progress safely as the primary care nurse for [three to four] patients,” needed a daily reminder to “work on time management skills,” required “consistent and ongoing monitoring of his clinical practice,” and while he improved, Complainant’s “clinical performance has not been sustained and remediation has not made any significant improvement in his performance.” On July 30, 2014, the Chief received Complainant’s rebuttal, disagreeing with his Proficiency Report. Complainant claimed that the Manager “often displayed unprofessionalism” and he felt that he was discriminated against since the first day he started working for the Agency. On or about August 11, 2014, the Manager issued a schedule to all employees, including Complainant. Complainant was not scheduled for work on August 30 and 31, 2014, and female nurses with no prior protected activity were scheduled for work on August 30 and 31, 2014. At that time, Complainant’s department was understaffed on August 30, 2014, and he claimed he was not aware there was a shift change. Complainant showed up to work on August 30, 2014, relying on his “normal shift for the week.” The Manager credited Complainant with working on the day that he was not scheduled and gave him a day off in exchange. On August 19, 2014, the Chair of the Summary Review Board issued Complainant a notice of “Summary Review Board.” Therein, Complainant was placed on notice that the Board would review “alleged deficiencies” in his performance. The notice also noted that since Complainant’s orientation, he had “several instances of unacceptable performance.” On September 22, 2014, the Chair issued a memorandum to Human Resources concerning Complainant’s performance. Specifically, the Chair noted that Complainant “demonstrated unsafe care which is evidenced by poor communication skills, poor medication administration skills, and inadequate retention of nursing skill knowledges.” The Chair further noted that Agency management and nursing education “had provided multiple opportunities for [Complainant] to improve. However, he was still unable to complete the orientation process at a satisfactory level.” Thereafter, on September 24, 2014, the Director issued a “Termination of Temporary Appointment” to Complainant. Therein, the Medical Center Director notified that the Chief had recommended that his appointment be terminated due to Unacceptable Performance. The record contains a copy of the September 24, 2014 termination letter. Therein, the Medical Center Director placed Complainant on notice that he would be terminated effective October 10, 2014 due to Unacceptable Performance. 0120180891 9 The Manager (year of birth 1957, prior protected activity) explained that she interviewed Complainant for the Registered Nurse position and recommended him “for hire based on the interview and based on his credentials.” The Manager noted that the initial working relationship with Complainant “was a very good working relationship, but over the course of months the relationship deteriorated because of some clinical concerns that had been raised during the orientation process.” Specifically, the Manager stated that Complainant was hired as a Registered Nurse “in which the orientation process normally takes anywhere from six to eight weeks, depending on the skill level and the experience level of the employee. Some additional weeks may be required, but in this case it was approximately nine months, and the employee was still on orientation. From my assessment, the employee was not acceptable [on matters] that were represented regarding his performance. He was not self-directed in trying to address the issues that were raised, and an employee cannot remain on orientation indefinitely.” The Nurse Educator (year of birth 1965, prior protected activity) stated that the only interaction she had with Complainant was during training and weekly orientation meeting. The Nurse Educator stated that while she recalled the Manager asking Complainant which nursing school, she had no knowledge of the Manager asking Complainant if he had trouble passing the Nursing Clinical Exam. The Nurse Educator acknowledged expressing her concerns about Complainant’s performance to the Nurse Manager and other Nurse Educator. Specifically, the Nurse Educator stated that Complainant had difficulties with multi-tasking, recalling information from previous lab training, following instructions, and performing skills in the lab. The Nurse Educator further stated that she developed a “structured orientation” for Complainant with extended time in the Nursing Lab. Complainant asserted that he disagreed with the comments listed in the PCS Orientation Competency evaluation on April 21, 2014, that the Nurse Educator accused him of being intimidating and requested a release from being a nurse educator. The Nurse Educator noted that Complainant did not attend a scheduled lab validation and “when it was disclosed in the meeting; he raised his voice, and stared at me - this made me feel unsafe and uncomfortable in his present, at this time the environment was hostile and intimidating to me; there were several witnesses present: the Nurse Manager, His Union Representative, and his preceptor.” Further, the Nurse Educator stated that on April 10, 2014, Complainant was scheduled to meet with her and another Nurse Educator to validate nursing skills but “he did not show up that day. According to [Complainant] he s[t]ated we told him that we (Nurse Educators) would come and get him to the lab. The Nursing Training Lab is located on the same unit [Complainant] worked on.” The Chief Nurse (year of birth 1975, prior protected activity), also Complainant’s second level supervisor, stated that during the relevant period, the information that was included with Complainant’s orientation was submitted from the Manager to Human Resources “to determine 0120180891 10 if there should be a Summary Review Board; held a Nursing Summary Review Board to determine if [Complainant] should be retained or not based on his practice. Many of these complaints are related to the time frame when he was in orientation.” Furthermore, the Chief Nurse noted that the Summary Review Board determined that Complainant should not be retained due to his unacceptable performance. Based on the evidence developed during the investigation, as described above, the AJ concluded no discrimination was established. Disparate Treatment 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). Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. Harassment To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis – in this case, age and/or retaliatory animus. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself. Here, the AJ found that the evidence of record did not establish that Complainant’s age or prior protected activity played any role in the incidents proffered to support his claim of harassment. We determine that the AJ’s analysis that Complainant failed to prove his harassment claim was also proper. 0120180891 11 We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination.5 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 5 Complainant, on appeal, does not challenge the January 23, 2015 and April 23, 2015 partial dismissals issued by the agency regarding eight other claims. Therefore, we have not addressed these issues in our decision. 0120180891 12 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 13, 2019 Date Copy with citationCopy as parenthetical citation