0120152277
10-26-2017
Hilaria S.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hilaria S.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152277
Agency No. 200306672014103404
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 27, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant (MSA) at the Agency's Overton Brooks Veterans Affairs Medical Center (OBVAMC) facility in Shreveport, Louisiana.
Complainant made contact with an EEO counselor on June 11, 2014. On September 20, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (55) and reprisal for prior protected EEO activity under the ADEA, when:
1. In January 2012, the Acting Chief of Nursing (RMO1), the Acting Nurse Manager (RMO2), and the Nurse Manager (RMO3) denied Complainant's request to be off on the July 4, 2012 and December 25, 2012 holidays;
2. On April 26, 2012, the Staff Nurse (RMO4) falsely reported that Complainant had accused a coworker of smashing her computer keyboard;
3. In May of 2012, the Staff Nurse (RMO4) belittled Complainant in front of coworkers when the Staff Nurse yelled, "the Operating Room (OR) team is being held up because you do not have the patient consent form ready;"
4. In June of 2012, RMO4 belittled Complainant in front of coworkers when she yelled that Complainant did not properly admit the patients;
5. In June of 2012, the Nurse Recruiter at the time (RMO5) denied Complainant's access to the Board process by not accepting her application;
6. In January 2013, a named physician (RMO6) yelled at Complainant, in anger, in the presence of other employees and accused Complainant of not discharging patients correctly;
7. In November of 2013, RMO1 and RMO3 denied Complainant's request to be off on the holidays of May 26, 2014, July 4, 2014, November 11, 2014, and December 25, 2014;
8. In December 2013, RMO3 changed Complainant's performance rating from outstanding to fully successful;
9. On December 20, 2013, the Director denied Complainant's position upgrade to the GS-06 salary grade level;
10. On April 29, 2014, RMO2 filed an assault charge against Complainant for allegedly hitting her (RMO2's) foot with a plastic tube;
11. On May 6, 2014, the Chief of Nursing (RMO6) reassigned Complainant without prior notification from working on nursing unit three north to nursing unit six north;
12. On May 26, 2014, RMO6 and the Nursing Manager (as of November 2013) (RMO7) delayed Complainant's pay when she worked the Memorial Day holiday;
13. On June 5, 2014, Complainant was intimidated when RMO7 sent a Police Officer [to Complainant] and the police officer interviewed Complainant in front of her coworkers (event 10);
14. In June of 2014, RMO6 reassigned Complainant without prior notification from working on nursing unit six north to nursing unit six east; and
15. On July 2, 2014, another coworker (CW2) belittled Complainant when he told the Secretary, "Oh, look out, here comes trouble."
The Agency dismissed claims 1, 5, 7, 8 and 9 for untimely EEO contact. The Agency reasoned that Complainant's initial contact was June 11, 2014 and therefore those alleged matters fell outside of the 45 day regulatory time limit. The Agency considered the events to be sufficiently related to the overall pattern of harassment and included the events in the analysis of the harassment claim.
Claims 1 and 7 - Denial of Preferred Holidays Off
Complainant reported to the Acting Nurse Manager, an Acting Chief of Nursing, the Staff Nurse and a Nurse Manager. All were over age 40. She submitted her leave and holidays days off request for the 2012 calendar year. She stated that holiday days off requests are to be processed according to seniority. Management averred that, on any holiday, only half of the MSA staff may be off at the same time.
In January 2012, the Acting Chief of Nursing (RMO1) the Acting Nurse Manager (RMO2) and the Nurse Manager (RMO3) denied Complainant's request to be of on the holidays of July 4, 2012 and December 25, 2012. Complainant stated that a management official stated that she believed that preference should be given to those with young children.
The Nurse Manager denied her holiday days off requests. When Complainant asked why, she was told by another employee that RMO3 believed that the requests from staff that "were younger or had small children" should be prioritized. Complainant also believed that RMO3 harbored animus towards her because Complainant previously offered unfavorable testimony during a Fact Finding Inquiry regarding misconduct allegations against RMO3.
She did not receive the December 25, 2012 holiday because she had been off on December 25, 2011. Management submitted documentation showing Complainant was off on July 4, 2012.
Management stated there is no record of Complainant requesting off for May 26, July 4 and December 25, 2014. She stated that Complainant did request off on November 11, 2014, but this was not granted because she had been off for Veterans Day 2013.
Claim 8 - Rating
In December of 2013, management changed her fiscal year 2012-2013 performance appraisal from outstanding to fully successful. The stated reason was because Complainant had been out for a significant amount of time on leave and this impacted the rating. This claim was not accepted by the Agency. Complainant did not object to the dismissal on appeal.
Claims 2, 3, 4, 6, 10, 13 and 15 - Harassment / Hostile Work Environment
Complainant asserts that she was reprised against for speaking out against another named employee' EEO complaint on at least eleven times. Management takes the position that the coworker never filed an EEO complaint.
On April 2012, the Staff Nurse (RMO4) falsely reported that Complainant accused a coworker of smashing her computer keyboard.
In May of 2012, she was belittled when RMO1 yelled that Complainant did not properly admit the patients. In June of 2012, the Staff Nurse RMO4 belittled her.
The record shows that on April 29, 2014, Co-Worker (CW-1) accidently dropped a tube on the Complainant's foot. The coworker dropped it as she was reaching for another tube. CW-1 averred that, immediately, Complainant threw the tube she was holding at CW-1's foot and said, "That hurts, doesn't it?" CW-1 reported the incident. The police investigated the incident. The police did interview Complainant at the workplace, but management averred that there were no patients or co-workers within ten feet of them at the time of the police interview.
A second coworker (CW-2) acknowledged that he did make a comment similar to "here comes trouble" regarding the Complainant on July 2, 2014. He states that it was intended as a joke and that he frequently jokes with his co-workers.
Claims 5 and 12 - Terms and Conditions
In December 20, 2013, the director denied Complainant a position upgrade to the GS-06 salary grade level. On May 26, 2014, RMO6 and the Nursing Manager, as of November 2013 (RMO7), delayed Complainant's pay when she worked the Memorial Day holiday. She was subsequently paid.
In June of 2014, the Nurse Recruiter did not accept her application for access to the Boarding process. The record does not show whether this was an adverse personnel action or how Complainant was harmed by this action
Claims 11, 14 - Reassignment
On May 6, 2014, the Agency separated Complainant and the coworker (CW1) after the coworker complained about Complainant's action after CW1 accidentally dropped a tube on Complainant's ankle and Complainant responded by dropping a tube on CW1. While on the first detail, Complainant was informed on June 23, 2014 that, effective June 29, 2014, she would be sent on another detail. Complainant stated that OBVAMC policy required 30 days' notice for involuntary details and states she was not provided that much notice for any of her details. The Agency responded that due to the circumstances of the incident at issue and the need to separate the employees, the Agency was not able to provide 30 days advance notice in accordance with the Agency's policies. That detail was terminated on July 21, 2014 and Complainant returned to her permanent post on August 10, 2014.
At the conclusion of the investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation for the accepted claims and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The Agency found that Complainant did not prove discrimination. The Agency reasoned that it articulated legitimate nondiscriminatory reasons for the actions at issue. With regard to the claims regarding scheduling, the Agency stated that it did not grant Complainant all of the holiday days off requested because she had been off the prior year or because the staffing needs required a complement of 50% of staff to be on duty. Complainant was sent on a temporary detail following the allegation that of assault filed by CW-1. The Agency stated that it deemed it appropriate to separate the Complainant and CW-1 because it needed time to investigate the claims and that it was easier for OBVAMC to relocate Complainant who was a MSA. Because the detail was the result of a claim of assault, the Agency was not able to provide 30 days' notice. The Agency concluded there is nothing in the record to suggest that its decisions were unreasonable or untruthful, or a pretext for discriminatory intent.
With regard to the harassment claim, the Agency found that the instances cited did not rise to the level of actionable harassment. The Agency found "there is nothing in her testimony to suggest that the aggrieved actions were sufficiently severe or pervasive to affect the terms and conditions of the Complainant's employment." Likewise, the Agency concluded "the record is devoid of evidence to suggest that an unlawful discriminatory or retaliatory motive was a factor in the conduct identified by Complainant as harassing."
The decision concluded that Complainant failed to prove the discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argued that the claims listed in the Final Agency Decision do not accurately reflect the accepted claims in this case. She challenged the Agency's summary conclusion that the claims were not sufficiently severe and pervasive to establish a prima facie case of age discrimination, reprisal, and a hostile work environment. She noted that the alleged incriminating statements made by an Agency management official supported a finding of discrimination in this case and further stated that the Agency gave undue credence to the unsubstantiated, self-serving claims in the affidavit of one Agency official, who denied that a named employee ever brought an EEO case. Further, she argued that the Final Agency Decision failed to address 12 out of 15 of Complainant's claims and the relevant facts cited by Complainant in support of her hostile environment claim. Specifically, she stated that the Agency failed to consider the claims based on the totality of the circumstances.
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").
Section 633(a) of the Age Act requires that federal agencies make all personnel actions free of age discrimination. See 29 U.S.C. � 633(a) (all personnel actions in federal employment "shall be made free from any discrimination based on age").
Reprisal is also unlawful under Title VII. Complainant had prior EEO activity from 2003. We will assume, for purposes of our analysis, that the Agency was aware of her prior EEO activity when it took the alleged actions and that Complainant established a prima facie case of age discrimination and reprisal.
In this case, however, we also find that the Agency articulated legitimate reasons for each of its actions, as was noted above, and that Complainant failed to show that the stated reasons were a pretext for discrimination for any of her claims.
Harassment
We recognize that she perceived some of events to be hostile and that she disagreed with the Agency's reasoning for not permitting her holiday days or in reassigning her. To establish a claim of hostile environment harassment, however, a complainant must show that: (1) he or she belongs to a statutorily protected class: (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) that harassment complained of was based on his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982; Will K. v. Dep't of Veterans Affairs (Veterans Health Administration), EEOC Appeal 0120142904 (Oct. 18, 2016.
Although Complainant asserted that she was subjected to harassment based on her age and prior EEO activity, she provided insufficient evidence to show that the alleged harassing incidents occurred because of her protected bases with regard to any of the claims that she challenged on appeal. Moreover, Management officials denied making the statements (holiday scheduling preference should be given to those with young families) which Complainant attributed to them. We find, based on our review of the events raised by Complainant that she did not establish that she was subjected to an age-based hostile work environment.
Therefore, based upon our review of the record, we find that Complainant has not met her burden of establishing that the alleged events occurred because of her protected bases and / or prior EEO activity or that the alleged events created a hostile work environment due to her protected bases. Consequently, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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.
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
October 26, 2017
__________________
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.
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