01996458
09-06-2002
Magda Yenich, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Magda Yenich v. Department of Veterans Affairs
01996458
September 6, 2002
.
Magda Yenich,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996458
Agency No. 95-2170
Hearing No. 340-96-3666X
DECISION
INTRODUCTION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal pertaining to her complaint of unlawful employment discrimination
on the bases of race/color (white), sex (female), national origin
(Yugoslavia), age (over 40), disability (diabetes and Adjustment Disorder,
Mixed Mood), and reprisal (prior grievance activity) in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
For the reasons stated herein, we affirm the agency's final decision
(FAD).
ISSUE PRESENTED
The issue presented in this appeal is whether complainant has established,
by a preponderance of the evidence, that the agency discriminated
against her based on the above-cited bases when it (1) harassed her
from 1991 through 1995, which resulted in her involuntary retirement,
(2) failed to promote her to a Level 2 nursing position, and (3) issued
her a low proficiency report in November 1994.
BACKGROUND
According to the record, complainant began employment as a Registered
Nurse (RN), Level 1 at an agency facility in California in 1980.
In January 1991, a head nurse (S1) issued complainant a Letter of
Counseling (LOC) for taking her lunch break at the same time as other
RNs and leaving the nurses' station unattended. Complainant, via her
union representative, and the agency entered into a settlement agreement
in which they agreed that the LOC would be null and void six months
after its issuance as long as complainant did not repeat the infraction.
In April 1992, complainant was a RN on an intermediate care unit, and the
agency charged complainant with patient abuse (Charge 1), based on the
allegations of a senior medical officer and other RNs that complainant
refused to start or assist with insertion of an IV, and promptly removed
her from direct patient care. She was reassigned to an Outpatient Clinic
(OC), where she had no patient care duties. Essentially, complainant was
placed in an isolated area and had to run errands, transport laboratory
specimens, pick up charts, and stamp progress notes, all of which used
only a small portion of an eight hour work day. Several months later,
a three-member administrative board (Board) conducted an investigation
and sustained Charge 1. In November 1992, the agency issued complainant
a Notice of Proposed Removal based upon the sustained charge, to which
complainant submitted a verbal and a written response. The agency
rescinded the proposed removal in March 1993 and dismissed Charge 1.
It then reassigned complainant to its Nursing Home Unit (NHU).<1> The
agency assigned complainant a preceptor to assist her with her return to
direct patient care. In August 1994, the agency again charged complainant
with patient abuse (Charge 2), for yelling at a patient who has ALS,
and promptly removed her from direct patient care, pending the results
of a Board investigation. She was reassigned to Nursing Education,
where she had no patient care duties but instead performed clerical
duties in an isolated area. In November 1994, complainant's first-level
supervisor (S2) issued complainant a proficiency report containing an
�Unsatisfactory� rating. In December 1994, complainant's psychiatrist
(physician) recommended that the agency return complainant to direct
patient care in a stressless work environment, which he essentially
described as excluding isolated work areas, untimely accusations, and
the readdressing of old incidents. Complainant's second-level supervisor
(S3) informed complainant that she could not return her to direct patient
care because there was an abuse charge pending against her and she had to
await the results of the Board's investigation and decision on corrective
action, if appropriate. Complainant retired from the agency effective
February 2, 1995, after she learned that the agency proposed to reprimand
her and send her for a Fitness for Duty Examination (FFDE)<2> based upon
Charge 2. Also in February 1995, a Nurse Professional Standards Board
denied complainant's application for promotion to level 2, RN.<3>
Believing she was a victim of unlawful employment discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint alleging that the agency discriminated against her when it (1)
harassed her from 1991 through 1995, which resulted in her involuntary
retirement (constructive discharge), (2) failed to promote her to a
Level 2, and (3) issued her an �Unsatisfactory� proficiency report.
Regarding claim (1), complainant specifically alleged that she was
subjected to harassment when the agency issued her the LOC in 1991,
charged her with patient abuse as well as reassigned her twice, which
subjected her to humiliation and derogatory comments by other nurses,
monitored her work, refused to return her to direct patient care, and
planned to reprimand her and send her for a FFDE.
At the conclusion of the complaint's investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). After a hearing, the
AJ issued a decision finding that the agency harassed and constructively
discharged complainant based on national origin, age, and perceived
disability, but did not do so based on race/color, sex, or reprisal.
The AJ found that all of the alleged agency actions, except the LOC,
Charge 1 and its subsequent investigation, and the monitoring, were
included in complainant's harassment. The AJ concluded that complainant
did not have an impairment that substantially limited her in a major
life activity, but that the agency regarded her as an individual with
a disability because S2 and S3 considered her a threat to herself and
others and acted accordingly, e.g., requesting security presence at
a meeting with complainant, refusing to return complainant to direct
patient care, and accusing complainant of homicidal and suicidal threats.
Specifically, in finding discrimination based on perceived disability,
the AJ stated that S3's testimony that complainant threatened to harm
herself and others was uncorroborated hearsay and that �the agency
did not have enough information about complainant's �mental status' to
presume that she was unable to safely function in patient care ... and
therefore acted on the basis of a perception of disability unsupported
by appropriate medical documentation.�
The AJ found persuasive the testimony of a union representative (U1)
that (1) management failed to document disciplinary actions as they
occurred against complainant and later inappropriately manufactured
such disciplinary actions, (2) an inordinate number of disciplinary
actions were taken against those who were over age 40 and foreign born,
which seemed to be a trend started by the disciplinary actions against
complainant, and (3) management seemed intent on forcing complainant
out because of her age as displayed by the fact that the agency rarely
disciplined complainant during her early tenure at the facility. Also,
the AJ drew an adverse inference against the agency due to the fact
that it prematurely destroyed evidence relating to patient abuse charges
against other RNs for 1991, 1992 and early 1993. Also, regarding Charge
2, the AJ acknowledged that there was contradictory testimony and that
the agency relied on the statements of a contract employee rather than
an actual agency employee, so the AJ was not persuaded that the incident
occurred as the agency alleged. Lastly, the AJ found that the agency
did not discriminate against complainant when it failed to promote her
and issued her a low performance rating, stating that complainant's
performance probably deteriorated due to the harassment she suffered.
The agency issued a FAD finding no discrimination for claims (1) - (3).
Specifically, the agency found that complainant was not an individual
with a disability and that she failed to establish a prima facie
case of discrimination on any of the bases she cited. In addition,
the agency found that complainant failed to show that the legitimate,
nondiscriminatory reasons articulated by the agency for its actions were
pretextual. In response to the AJ's decision, the agency specifically
stated that complainant failed to show that she was substantially limited
in a major life activity and that the hearing testimony provided by S2
and S3 did not show that they regarded complainant as such. The agency
indicated further that actions were taken against complainant in response
to serious charges against her, rather than based on national origin
and age. The agency stated that the fact that there were comparative
nurses who were close to or over complainant's age and who were not
disciplined helps to support its contention. The agency added that
the average age of RNs at the facility at issue was 49. Also, the
agency responded that the hearing evidence that the AJ relied upon for
her finding was insufficient to prove discriminatory motive. Finally,
the agency stated that the AJ inappropriately made an adverse inference
because the agency was able to provide most of the statistical evidence
that the AJ requested.<4> This appeal from complainant followed.
ANALYSIS AND FINDINGS
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).
With respect to claim (1), to establish a claim of hostile environment
harassment, a complainant must show that: (1) she is a member of a
statutorily protected class; (2) she was subjected to harassment in
the form of unwelcome verbal or physical conduct; (3) the harassment
complained of was based on the statutorily protected class; and (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.
Soto v. U.S. Postal Service, EEOC Appeal No. 01994396 (March 15, 2002).
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering the nature
and frequency of offensive encounters and the span of time over which
the encounters occurred. See Cobb v. Department of the Treasury, Request
No. 05970077 (March 13, 1997). However, as noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the 'terms and
conditions of employment." The Court noted that such conduct "must be
both objectively and subjectively offensive, [such] that a reasonable
person would find [the work environment to be] hostile or abusive,
and ... that the victim in fact did perceive to be so." Id. at 787.
Applying the standards set forth above, the Commission has thoroughly
examined the record, and we find no substantial evidence to support the
AJ's finding that complainant was subjected to a hostile work environment
based upon her membership in the statutorily protected classes of national
origin, age, or disability. Essentially, the AJ based her findings
upon (1) the testimony of U1 that the agency manufactured �back-dated�
disciplinary actions against complainant to justify its actions against
her, (2) U1's testimony about her belief that the agency's actions were
motivated by complainant's age and the agency's lack of understanding
about complainant's cultural differences, e.g., speaking in a loud and
expressive manner, (3) statistics compiled by U1 in 1996, which revealed
that a large number of union cases involved disciplinary actions against
employees who were over 40 and who were foreign-born minorities, (4)
the adverse inference that no other nurse charged with patient abuse faced
such a long period of reassignment as complainant; (5) the contention that
the second charge of patient abuse against complainant was trivial, based
upon contradictory testimony, and the testimony of a contract employee,
and (6) the fact that complainant's supervisors were aware that she
consulted with a psychiatrist and they requested security for a meeting
with complainant, refused to return her to direct patient care against
her doctor's recommendations, and intended to send her for a mental FFDE.
Although we agree with the AJ that there is sufficient evidence in the
record to show that complainant was subjected to harassment, we find
that the record does not support a nexus between complainant's protected
classes and the harassment alleged. The aforementioned six AJ contentions
do not substantially support a finding of discrimination and are all
addressed below. Also, to the extent that we find that complainant was
not harassed based on discriminatory motives, we also find that she was
not constructively discharged. See McKinney v. U.S. Dep't of Agriculture,
EEOC Petition No. 03980082 (December 4, 1998) (stating that �a finding
of discrimination is intrinsic to a claim of constructive discharge�).
In addition, we find that there is substantial evidence in the record to
support the AJ's finding of no discrimination on the bases of race/color,
sex, or reprisal for claim (1) and for all alleged bases for claims (2)
and (3).
I.
We note that the agency cited allegations from third parties which were
later substantiated by three-member boards, rather than complainant's
disciplinary history, as the justification for its actions. U1 testified
that when she investigated Charge 2, S2 indicated that complainant had a
long history of disciplinary problems which management consistently spoke
to her about, but that management did not document complainant's behavior.
U1 testified that she was disturbed to later discover a report of contact
and other materials in complainant's record that had been �backdated.�
Although placing �backdated� disciplinary actions in an employee's
record could be considered inappropriate, such does not refute the
patient abuse charges against complainant that were instituted due to
allegations by third parties. The patient abuse charges were the reason
that the agency proffered for complainant's reassignment.
II.
U1 testified that she believed that complainant was targeted by
her supervisors based on her national origin and possibly her age
because other agency departments either overlooked actions similar to
complainant's or disciplined their employees less harshly. U1 inferred
that management had difficulty dealing with complainant's national origin
as displayed by S2's description of complainant as �hot-tempered,� which
U1 believed was probably a misinterpretation of the expressive manner
in which persons of complainant's culture speak.
First, the comparators that U1 cited were not similarly situated to
complainant in that they worked in different departments and assumedly
for different supervisors. Second, a supervisor can hold all employees
to the same standard of conduct so it would not seem inappropriate for
them to prohibit complainant from speaking in a loud and aggressive
tone in the workplace if that was the standard of conduct to which all
of that supervisor's employees were held.
III.
The information that U1 provided is inconclusive without considering
the other statistics of the agency facility. U1 testified that as of
October 29, 1996, the union had 16 cases of disciplinary actions, 13 of
which were employees over 40 years old, 8 of which were employees over
50, and 11 of which were foreign born minorities. U1 surmised that
the agency started a trend in disciplinary actions with complainant.
The agency stated that the average age of RNs at the facility at issue
was 49. If the agency's RN population is primarily comprised of RNs
over the age of 40, it would not seem improper for the majority of
disciplinary actions to be against RNs in the coordinating age group.
The testimony that U1 provided on this matter is inconclusive.
IV.
The AJ drew an adverse inference that no similarly situated employee
outside of complainant's protected classes of age or national origin was
reassigned out of patient care for as long as complainant. The AJ drew
such an inference because the agency failed to provide documentation
regarding patient care abuse charges/reassignments for January 1991
through Summer 1993, a portion of the time period that the AJ requested.
The agency did, however, provide documentation, which showed that,
from October 1993 through February 1995, four other RNs were charged
with patient abuse. We note that all four RNs were also over the age
of 40 and were of minority racial classes. We note further that only
one of the four was reassigned from patient care, for a period of three
to four months, and the other three remained in patient care as the
involved patient was either discharged or expired. None of the four
had the same first, second or third level supervisor as complainant.
We also acknowledge that the agency charged complainant with Charge 2 in
early August 1994, conducted interviews of witnesses in late August 1994,
and rendered an investigative board decision on September 16, 1994.
The board, in said decision, recommended that appropriate action be
taken in regard to the sustained verbal abuse charge. On December 28,
1994, S3 informed complainant that the agency proposed to reprimand her
and recommended a FFDE. S3 testified that reassignment is not intended
to punish, but instead to separate a patient/patient's family and an
employee while an investigation is conducted. S3 testified further
that the length of reassignment is determined by the length of time
it takes to create an investigative board and decide what, if any,
corrective action should be taken. The aforementioned information does
not persuade us that complainant was harassed based on an impermissible
factor. Particularly when we consider that the average age for RNs at the
facility was 49 and complainant worked many years in the facility without
disciplinary actions seemingly based on national origin. We are persuaded
that complainant was reassigned for six months pending the results of
an investigation and the consideration of appropriate corrective action.
V.
The AJ inferred that the agency sought an excuse to discipline
complainant and force her out. We find that such an inference is
not reasonable because a charge of verbal abuse of a patient is not
trivial; the allegation was made by a third party, not management; and
the fact that the third party who made the allegation was not employed
by the agency but by a contractor could strengthen rather than weaken
the nondiscriminatory motive of the allegation. We acknowledge that
the testimony surrounding charge (2) was contradictory in that the
patient changed her story several times. However, the patient's initial
statement was that complainant did yell at her but that she did not want
to get complainant in trouble because complainant attended to her when
she needed her. We note further that the patient has an illness which
causes her to frequently cry. Complainant stated that the third party
accused her of abuse because she previously reprimanded the third party.
We find that contention (5) does not persuade us that complainant was
harassed based on discriminatory factors.
VI.
As a threshold matter in a case of disability discrimination, the
complainant must demonstrate that she is a "qualified individual with
a disability."<5> See 29 C.F.R. � 1630.4. We are not rendering a
determination on the AJ's finding that complainant is an individual with
a disability because, we find, even assuming that complainant is covered
by the Rehabilitation Act, she failed to establish harassment based on
disability for the reasons outlined below.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, complainant must first establish a prima facie case.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy her burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Complainant failed to establish that the legitimate, nondiscriminatory
reasons articulated by the agency for its actions were pretextual.
The agency reassigned RNs against whom patient abuse charges were lodged
pending an investigation, especially where potential contact between
the RN and the patient or patient's family remained. The agency did
not return complainant to direct patient care in accordance with her
physician's December 1994 recommendation because an investigative board
sustained charge 2, and as a result, the agency proposed a reprimand
and recommended a FFDE. We find that the FFDE is not violative of the
Rehabilitation Act because the agency had a reasonable belief based on
objective evidence, i.e., sustained patient abuse charge and allegations
of prior threats by complainant<6>; that complainant could not perform
the essential functions of her position without posing a direct threat to
herself or others.<7> See Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees under the
Americans with Disabilities Act (ADA), No. 915.002 (July 27, 2000).
We note that complainant retired in February 1995 before the reprimand
or FFDE took place.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, we affirm the agency's final
decision finding that unlawful employment discrimination was not proven
by a preponderance of the evidence for claims (1) through (3).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 6, 2002
__________________
Date
1The union indicated that assignment to a less acute environment than
intermediate care would benefit complainant.
2The agency intended to give complainant a mental FFDE because
her supervisors questioned her emotional state. S3 testified that
complainant's coworker informed her that complainant consulted with a
psychiatrist, to whom she confided that she would kill hospital staff
and herself if her job was affected by Charge 1. S3 testified further
that night and evening supervisors informed her that complainant called
them distraught and threatening to kill herself if the agency took action
against her.
3According to the record, RNs are considered for promotion by the Nurse
Professional Standards Board with each annual proficiency report after
they have attained their full grade as level 1.
4The agency stated that information about patient abuse charges was
maintained in the Office of Performance Improvement and Consumer Affairs
in the file of the involved patient. The agency indicated further that
the information is retrievable back two years. As a result, the agency
was only able to provide information back to October 1993.
5The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
6We note that hearsay is admissible in administrative proceedings.
See 29 C.F.R. � 1603.214.
7We note that the AJ did not conclude that the FFDE was inappropriate.