Machelle L,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 12, 2020

2019000414 (E.E.O.C. Aug. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Machelle L,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019000414 Hearing No. 430-2015-00170X Agency No. 2004-0558-2014101377 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 September 20, 2018, final order 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. At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, Nurse II at the Agency’s Medical Center in Washington, DC. On May 2, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and color (Black) as evidenced by the following 33 events that form the bases of her claims: 1. In May 2013, a Human Resources (HR) Specialist, sent VA Form 75 to Complainant's previous employer to complete, which resulted in her (Complainant) being terminated, instead of having the opportunity to resign; 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. 2019000414 2 2. On June 10, 2013, the Nurse Professional Standards Board (NPSB), improperly boarded Complainant as a Title 38 Nurse Manager; 3. In July 2013, a Nurse and/or HR Recruiter (NHR1), and another employee, failed to recuse themselves from the NPSB, even though they had a conflict of interest and/or self interest in the NPSB process/outcome; 4. From July 13, 2013, through the present, the NPSB, NHR1, the Associate Director (AD), the Acting Associate Chief Nursing Officer (S2), the Director of HR (DHR), and the former Associate Chief Nursing Officer (S1), failed to properly board and/or determine Complainant's yearly salary; 5. From July 13, 2013, through June 3, 2014, S2 failed to provide Complainant with a completed Executive Career Field (ECF) form; 6. From July 14, 2013, through March 31, 2014, Complainant was the only African-American Nurse Manager, forced to share office space while managing programs and staff; 7. From August 2013, through October 2013, Program Director (PD) subjected Complainant to intimidation, yelling and bullying, during meetings and gatherings; 8. Beginning on September 19, 2013, and ongoing, PD assigned the Complainant to manage 70+ employees, while experienced Nurse Managers only managed 30 employees; 9. From September 19, 2013, through July 16, 2014, S2 denied Complainant's request for compensation for managing two specialty clinics; 10. From September 2013, through July 16, 2014, S2 failed to provide Complainant compensation for attending mandatory 30 minute meetings prior to the beginning of tour of duty; 11. On November 4, 2013, AD told Complainant, “I would then have to resubmit everyone else's to the NPS board, and I am not going to do that;” 12. On December 30, 2013, S2 wrote a false report of contact concerning Complainant's performance and conduct, without first providing proper guidance; 13. On February 3, 6, 12, and 20, 2014, S2 wrote a false report of contact concerning Complainant's performance and conduct without first providing proper guidance; 14. On February 12 and 21, 2014, and March 11, 2014, S2 "wrote Complainant up;" 2019000414 3 15. On February 12, 2014, an Associate Chief Nurse (CAN), wrote a false report of contact concerning Complainant's performance and conduct, without first providing proper guidance; 16. On March 11, 2014, S2 issued Complainant a "Letter of Instruction," directing her to rotate through the ENT/Urology area; 17. From March 31, 2014, through April 3, 2014, AD and S2 failed to provide Complainant an office and computer desk to work; 18. On May 2, 2014, S2 provided Complainant a blank copy of her ECF, without providing her an opportunity to provide input, in accordance with standard protocol; 19. On May 2 and 8, 2014, S2 wrote a false report of contact concerning Complainant's performance and conduct without first providing proper guidance; 20. On May 8, 2014, AD and S2 denied Complainant's request to attend the "AAACN" conference; 21. On May 8, 2014, S2 denied Complainant's request for authorized absence for May 19-22, 2014, to attend the "AAACN" conference; 22. On June 2, 2014, S2 provided Complainant less than 24-hour notice to prepare for a meeting on June 3, 2014, about her ECF; 23. On June 3, 2014, S2 reassigned Complainant from her position as a Nurse Manager to the position of Clinical Documentation Improvement Specialist; 24. On June 3, 2014, S2 rated Complainant "needs improvement" on her midyear ECF; 25. On June 3, 2014, S2 falsified information within Complainant's performance appraisal; 26. On June 3, 2014, S2 denied and/or failed to approve Complainant's leave request for August 29, 2014, through September 1, 2014; 27. On June 19, 2014, Complainant learned that she had not been selected for the position of Associate Chief Nurse, Ambulatory Care Service; 28. On June 26, 2014, Complainant was subjected to a "SRB hearing" in which two of the members had a conflict of interest in the proceedings; 29. On July 2, 2014, the Director (D1) notified Complainant that effective July 16, 2014, she would be terminated from her probationary position as a Registered Nurse; 2019000414 4 30. On July 16, 2014, Complainant learned that S2 had falsified her (Complainant's) time and attendance records from September 2013, through July 16, 2014; 31. From July 17, 2014, through the present, a Human Resources employee, and CAN intentionally failed to process Complainant's termination paperwork so that she could apply for unemployment; 32. On an ongoing basis, no dates provided, NHRA precluded Complainant from negotiating her salary with PD and S2; and 33. On an ongoing basis, no dates provided, D1 and AD failed to intervene and stop Complainant from being subjected to a hostile work environment by her chain of command. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency. The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2019000414 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 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. 2019000414 6 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 August 12, 2020 Date