Elene K.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 21, 2019

0120172271 (E.E.O.C. Feb. 21, 2019)

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

Elene K.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120172271

Hearing No. 461-2016-00097X

Agency No. 2003-0667-2015104056

DECISION

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 May 15, 2017 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. The Commission’s review is de novo. 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 Chief Nurse, Acute
Care, VN-0610-IV, at the Agency’s Overton Brooks VA Medical Center facility in Shreveport,
Louisiana. The Deputy Associate Director for Patient Care Services was Complainant’s first-line
supervisor during the relevant period. From March 2015 through August 2015, the Acting
Associate Director for Patient Care Services (ADPCS) (S1) was Complainant’s second-level
supervisor. Outside of those dates, S1 was the Chief Nurse for Primary Care. Following S1’s
tenure as the Acting ADPCS, the new ADPCS (S2) became Complainant’s second-line supervisor.

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.
0120172271

2
On July 25, 2015 (and amended three times), Complainant filed an EEO complaint alleging that
the Agency discriminated against her and subjected her to a hostile work environment on the bases
of race (African-American) and in reprisal for prior protected EEO activity as evidenced by
multiple incidents including, inter alia:

a. Denying her the opportunity to attend “Black Belt” training on May 29, 2015;

b. Assigning her the task of changing the competency requirements for Licensed Practical
Nurses (LPNs) on June 2, 2015;

c. Removing her from the facility Director’s morning report meetings (MRMs) on June
5, 2016;

d. Denying her request for a 90-day extension to complete staff proficiency reports (SPRs)
on June 19, 2015;

e. Precluding her from hiring to fill critical positions in “8 West” from August 11, 2015,
through February 2016;

f. Revoking her parking privileges for the “Chief’s” parking lot on August 25, 2015;

g. Denying her request to hire a Nurse Manager for the Intensive Care Unit (ICU) on
October 5, 2015 and January 1, 2016;

h. Placing her on “administrative absence” on October 19, 2015;

i. Requiring her to submit her staff performance appraisals on November 14, 2015 and,
on November 18, 2015, rate her staff pursuant to rating criteria of which they had no
knowledge;

j. Returning and/or refusing to process completed performance appraisals and awards for
her staff of December 1, 2015 and January 20, 2016;

k. Denying her the opportunity negotiate the performance appraisal rating criteria for her
staff on January 13, 2016;

l. Instituting a policy requiring her and other management staff to interview job
applicants before selecting them for positions on January 27, 2016;

m. Denying her the opportunity to earn compensatory time on February 5, 2016;

n. Removing her from a meeting on February 19, 2016;

o. Denying Complainant’s request for a detail on February 29, 2016; and
0120172271

3

p. On April 17, 2016, the Agency subjected her to disparate treatment by requesting that
a staff member write a Report of Contact (ROC) against her.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission 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.

With respect to claim (a), the Agency determined that S1 denied Complainant’s training request
because of a travel conflict and the Agency’s need for Complainant to cover for S1 during her
absence. Regarding claim (b), the Agency noted that S1 acknowledged that the email she sent
could have been worded differently, but when she asked Complainant if she had the opportunity
to review the competencies, the conversation ended once Complainant stated that she had not. As
for claim (c), the Agency indicated that reporting changed, which made it no longer necessary for
a Chief Nurse to attend the MRMs. Instead, S1 performed the tasks to allow Complainant and
other Chief Nurses time to address more pressing matters. Regarding claim (d), the Agency found
that S1 denied Complainant’s request for a 90-day extension based upon recommendations from
Human Resources, noting that S1 felt that the request was being made for the Interim or Acting
Manager to complete the proficiencies rather than the Chief Nurse.

As for claim (e), the Agency noted that management officials indicated that multiple requests were
denied due to a hiring freeze. S2 stressed that he hired an ICU Nurse for Complainant but did not
recall hiring anyone for Outpatient Care during the relevant period. In addressing claim (f), the
Agency accepted S2’s explanation that Complainant’s name was on the parking list, but once
Complainant brought the matter to his attention, he emailed the Acting Chief of Police letting him
know that Complainant should not receive any further tickets. S2 denied having knowledge as to
why Complainant’s parking privileges were revoked or who revoked Complainant’s parking
privileges. As for clam (g), the Agency found that hiring decisions were based on the budget, as
well as, restructuring and reorganizing the Nursing Service structure. In addressing this claim, the
Agency noted that the addition of a Chief Nurse for Critical Care encompassed the ICU unit,
operating room, and recovery room. With respect to claim (h), the Agency determined that the
Administrative Investigation Board was conducted because several employees complained about
harassment and workplace bullying.

Regarding the performance appraisals at issue in claims (i) and (j), the Agency found that S2
reviewed Complainant’s appraisals to ensure that the rating process was fair, but he discovered
inconsistencies, which he took additional time to resolve with Complainant. S2 added that he
informed Complainant that the rating criteria needed to more accurately reflect the duties of the
Nurse Managers and eliminate extraneous information. S2 approved Complainant’s staff
appraisals following the resolution of all inconsistencies and his return from sick leave. As for
claim (k), the Agency noted that S2 was on sick leave and the incident did not occur.
0120172271

4

As for claim (l), the Agency noted that management officials had the right to change and make
additions to the interview process to ensure that they were getting the best qualified candidates.
Regarding claim (m), the Agency found that Complainant never requested compensatory time, but
received overtime compensation in the past upon request. As to claim (n), the Agency explained
that the meeting was intended for senior leaders at the facility and Complainant was excused from
the meeting so that she could attend to operational matters. With respect to claim, (o), the Agency
found that S2 denied Complainant’s request because Complainant’s first-line supervisor had
accepted a position in Washington and S2 had concerns about his own health, which would have
left only two people to run the Nursing Service. The Agency indicated that S2’s decision was
made with the goal of ensuring that the hospital had enough coverage to manage the Nursing
Service.

In sum, the Agency found that Complainant failed to show that the alleged incidents were severe
or pervasive enough to rise to the level of a hostile work environment. The Agency also found
that Complainant did not show that its actions were motivated by discriminatory or retaliatory
animus. Accordingly, the Agency found that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant questions the validity of the submitted case file. Complainant contends
that the Investigator failed to include pertinent emails that she submitted to support her claims and
erroneously stated that Complainant failed to submit the documents. Complainant adds that the
Investigator compromised the integrity of her case by placing some of the evidence in the files of
other complainants. Among other issues presented on appeal, Complainant contends that the
Investigator failed to interview some witnesses and incorrectly questioned at least one of the
witnesses with respect to the parking privilege claim. Complainant claims that she did not receive
a copy of her testimony to verify the accuracy and that she never received an opportunity to rebut
the Agency’s responses. As a result, Complainant requests that the Commission reverse the final
decision.

ANALYSIS AND FINDINGS

As an initial matter, the Commission will address Complainant’s dissatisfaction regarding the
investigation of her complaint. Complainant contends that the Investigator improperly handled
her case file; failed to question the appropriate witnesses; questioned the incorrect witness
regarding her parking privileges; failed to provide a copy of her testimony; and did not provide
her an opportunity to rebut the Agency’s responses, we note that Complainant chose to withdraw
her request for a hearing. Upon review of the entire record, the Commission is not persuaded that
the investigation into Complainant's complaint was improper or incomplete. Complainant failed
to request a hearing, a process which would have afforded her the opportunity to conduct discovery
and to cure alleged defects in the record. Thus, despite the above referenced arguments, the
Commission determines that the investigation was properly and adequately conducted.
0120172271

5

Disparate Treatment

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). Complainant must initially establish a prima facie case by demonstrating that he
or she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. 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 804 n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Although the initial inquiry in a discrimination case usually focuses on whether the petitioner has
established a prima facie case, following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See Washington v. Dep’t of the
Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from
whether the petitioner has established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency’s reasons for its actions merely were a pretext for
discrimination. Id.; see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-717
(1983). In this case, even if we assume, arguendo, that Complainant has established a prima facie
case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its
actions.

Regarding claim (a), the denial of Complainant’s request to attend training, S1 affirmed that she
requested that Complainant not attend the training due to a travel conflict. ROI, at 598.
Specifically, S1 explained that she was travelling as the Interim ADPCS and she felt that
Complainant, as an experienced Chief Nurse, could stay and cover for her. Id. S1 acknowledged
that once she informed the System Redesign Coordinator that Complainant could not attend, a
request was made for a different Nurse Manager to attend. Id. S1 stated that the Nurse Manager
that was asked to attend had pre-scheduled annual leave for the week, which she changed to attend
the training. Id.

As to claim (b), S1 affirmed that she sent an email after business hours, which was related to
competency requirements for LPNs. ROI, at 598. S1 advised that she requested that Complainant
and another employee review the documents so that they could be discussed the following
morning. Id. She added, however, that she did not expect staff to spend additional time beyond
their working tours to read or change the documents. S1 averred that on the morning following
the email, she asked Complainant if she had time to read the email and Complainant said no, which
ended the conversation. Id. Moreover, S1 denied Complainant’s allegations that a Caucasian
female was not required to complete the competencies. Id. at 599.

0120172271

6
With respect to claim (c), S1 asserted that during the relevant period, nursing leadership was sparse
and management officials made the decision to change which parties needed to attend the morning
reports. ROI, at 606. S1 explained that reporting changed, and it was not always necessary for
the Chief Nurse to attend. Id. Similarly, she noted that someone reported that there was enough
for Complainant to do so that she did not need to attend the meeting, and S1 felt that was a
legitimate concern. Id. S1 subsequently offered to attend the meeting as the Acting ADPCS and
provide information for the morning report. Id. S2 stated that S1 informed him that the Medical
Center Director requested that she be the only person to attend the morning report meeting. Id. at
627. However, S2 did not agree with the decision because he felt that someone needed to know
how to fill in if he were absent. Id. As such, Complainant’s first-line supervisor was asked to
attend the meetings going forward, which she did. Id.

Regarding claim (d), S1 stated that there were several Operating Room Nurse Managers and most
of them did not remain in the position for 90 days. ROI, at 601. She explained, for example, that
at least one Nurse Manager was there for just 45 days, and S1 questioned how a 90-day extension
would be helpful if the Nurse Managers would not be in their acting position for more than 90
days. Id. S1 noted that she called Human Resources for guidance and received the instruction to
have the Chief of Acute Care compete the proficiencies. Id. S1 explained that, subsequently, she
informed Complainant that based on Human Resources’ guidance, the proficiencies needed to be
completed for the benefit of the employees. Id. S1 maintained that she denied Complainant’s
request with the understanding that it was being requested for the Interim or Acting Nurse Manager
to complete the proficiencies and not the Chief Nurse. Id.

As for claim (e), S2 asserted that there were problems with the budget, but noted that he placed
requests to fill the positions at issue which were denied. ROI, at 628. S2 did not recall hiring
anyone on the outpatient side during this period, but indicated that any hiring in the outpatient area
was due to the Medical Center Director’s approval. Id. at 629. S2 stressed, however, that an ICU
Nurse was hired for Complainant’s area after initial denial due to the critical nature of the position.
Id. S1 noted approval was granted for an Emergency Room Nurse Manager because there was not
going to be any leadership in the area, as the Nurse Manager and Assistant Nurse Manager were
leaving. Id. at 608.

In terms of claim (f), S2 affirmed that he learned of the issue in January 2016. ROI, at 642. S2
related that Complainant informed him that she received a parking ticket and he followed up with
the Acting Chief of Police to question why. Evidence in the record reflects that S2 emailed the
Chief of Police on January 6, 2016. Id. at 665. S2 stressed that Complainant was included on the
list to use the Chief Parking Lot. Id. at 642.

Regarding claim (g), S2 acknowledged that he did not want to hire a Nurse Manager for ICU
because the Agency had restructured and reorganized the Nursing Service structure. ROI, at 643.
He stated that the reorganization resulted in the addition of another Chief Nurse for Critical Care,
which would include the ICU unit, operating room, and recovery room. Due to the change, S2 felt
that the selectee for the Chief Nurse for Critical Care should have the opportunity to choose the
Nurse Manager for ICU since they would be working together. Id. However, S2 approved the
0120172271

7
hiring of a Nurse Manager for ICU once he realized that it would be some time until the Chief
Nurse for Critical Care would come aboard. Id.

Concerning claim (h), S2 affirmed that the investigation was conducted because there were several
employee complaints about harassment and workplace bullying. ROI, at 644. A memorandum,
dated October 29, 2015, stated that Complainant was placed on non-duty with pay status, effective
October 26, 2015, pending an Administrative Board of Investigation “into the facts and
circumstances regarding allegations of a hostile work environment, workplace harassment, and
workplace bullying from several employees against Nursing leadership.” Id. at 474. In a
subsequent memorandum, the Agency informed Complainant that she was identified as a subject
of the investigation. Id. at 474.

Moving to claim (i), the record reflects that on November 18, 2015, S2 emailed Complainant
requesting justification for ratings above “Fully Successful” based upon five factors. ROI, at 575.
Complainant responded, stating that the Nursing Service was never given a specific performance
plan and it was never communicated that they would be rated based upon the information S2 was
requesting. Id. In response, S2 noted that it made it difficult to rate someone if they did not have
specific goals. Id. S2 asserted that when he started his position, he met with each Chief to discuss
ratings and get an understanding on how employees were rated. Id. at 645. He denied telling
Complainant to rate employees on criteria that was not communicated to them. Id. at 646. Rather,
S2 maintained, he presented factors that he thought would be pertinent towards evaluation and did
not expect Complainant to rate her subordinates on any items outside of their plans. Id.

Turning to claim (j), S2 averred that Human Resource notified him of the awards for
Complainant’s staff and in reviewing the awards, there were inconsistencies between the awards
and their prior conversations. ROI, at 646. S2 explained that the inconsistencies triggered his
request for Human Resources to return the appraisals and awards. He noted that he experienced
subsequent health issues which delayed the process, but he ultimately did not change the ratings
after resolving the inconsistencies and his return from sick leave. Id.

With respect to claim (k), S2 asserted that he was out on sick leave and the incident did not occur.
ROI, at 647. However, S1 asserted that she has negotiated her performance appraisal since holding
her position. ROI, at 608. In any event, Complainant acknowledged that S2 allowed her to change
items in her appraisal that gave her concern. Id. at 186.

Regarding claim (l), the record reflects a January 27, 2016 email informing Complainant, along
with other individuals, that there would be a new procedure to follow when hiring Nurse Managers.
ROI, at 578, 638. Moreover, S2 stressed that he had the authority to change or make additions to
the interview process. Id. at 648.

With respect to claim (m), management officials asserted that requests for compensatory time must
be submitted in advance. ROI, at 609. S2, however, noted that while he had approved overtime
requests for Complainant in the past, Complainant never requested compensatory time from him
during the relevant period. Id. at 648.
0120172271

8

As for claim (n), the Medical Center Director testified that a meeting occurred on March 9, 2016,
in the Director’s Conference Room, but provided no additional details on his reasoning for asking
Complainant and her supervisor to leave the meeting. ROI, at 686. Complainant, however, averred
that the Medical Center Director allowed the Operating Room Manager to remain at the meeting
and instructed Complainant and her supervisor to perform operational tasks. Id. at 193-194.

Regarding claim (o), S2 affirmed that he denied Complainant’s request for a detail because he was
concerned about his health and Complainant’s first-line supervisor leaving. ROI, at 651. S2 noted
that the departure of Complainant’s supervisor would have left two people to run the Nursing
Service. Id.

With respect to the ROC request, S1 testified that she received a call from the Nursing Officer of
the Day (NOD) informing her that there were several call-ins for the telemetry department, which
was a patient safety issue. ROI, at 615. The NOD told S1 that she had contacted Complainant,
who stated that she could not make a decision on which employee should go to the telemetry suite
without speaking with S2, whom the NOD could not contact. Id. S1 maintained that she requested
that the NOD make a ROC to apprise management of the situation. Id. at 616. She added the
ROC was further requested for training purposes and for competencies to be made available. Id.

Based on a review of the evidence as a whole, we find that the preponderance of the evidence in
the record does not establish that the Agency’s legitimate, nondiscriminatory reasons are pretext
for discrimination. Accordingly, we find that Complainant was not subjected to discrimination or
reprisal as alleged.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she 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 her protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

0120172271

9
Complainant has cited various incidents that she found to be adverse or disruptive. However, a
finding of a hostile work environment is precluded by our determination that Complainant did not
establish that any of the incidents taken by the Agency were motivated by discriminatory or
retaliatory animus based on race or reprisal. See Oakley v. U.S. Postal Serv., EEOC Appeal No.
01982923 (Sept. 21, 2000). We further find that the incidents, even if accurately described, were
not severe or pervasive enough to establish a hostile work environment.

The record is clear that Complainant had a contentious relationship with S1. We note, however,
that petty slights, minor annoyances, and simple lack of good manners occur in the workplace.
However, the Commission notes that Title VII is not a civility code. Rather, it forbids “only
behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale
v. Sundowner Offshore Serv., 523 U.S. 75. 81 (1998). Accordingly, we find that Complainant has
not provided evidence to establish that her race or prior EEO activity were factors in the Agency’s
decisions. The record simply does not reflect the discriminatory or retaliatory animus Complainant
alleges.

CONCLUSION

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 because the preponderance
of the evidence does not establish that discrimination occurred.

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
0120172271

10
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.

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.

0120172271

11
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

February 21, 2019
Date