Mardell B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 6, 20192019000361 (E.E.O.C. Feb. 6, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mardell B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019000361 Agency No. 200J-0523-2017-102027 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 July 26, 2018 final decision 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. BACKGROUND During the period at issue, Complainant worked as a Nurse Manager for the Agency in West Roxbury, Massachusetts. On June 2, 2017, Complainant filed a formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American) and in reprisal for prior protected EEO activity. By letter dated August 7, 2017, the Agency determined that the formal complaint was comprised of the following claims: Whether Complainant was subjected to a hostile work environment based on race (African American) and in reprisal as evidenced by the following events: 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. 2019000361 2 1. From June 2016 to December 11, 2016, management refused to allow Complainant to take disciplinary action against her subordinate staff. 2. On November 8, 2016, [a named management official] threatened Complainant with a PIP. 3. On November 8, 2016, [a management official] changed Complainant’s tour of duty. 4. On November 8, 2016, [a management official] advised Complainant not to teach at [a specified college program]. 5. Effective December 8, 2016, Complainant was forced into taking a demotion from a Nurse Manager to a Staff Nurse. 6. On February 8, 2017, [a management official] gave Complainant a Fully Successful performance rating. 7. On unspecified dates, the Union President made an inflammatory statement about Complainant’s race and status as a “big black woman,” refused to mediate with Complainant, encouraged and threatened to file more employee grievances and EEO complaints against her, and held union meetings (without Complainant’s consent) during work hours on the patient ward. The Agency accepted incidents (3), (5), and (6) as discrete actions that are independently actionable. The Agency also accepted incidents (1)-(6) as part of an overall harassment claim. The Agency dismissed claim (7) for failure to state a claim reasoning that these matters were a collateral attack on the grievance process. The Agency further found to the extent Complainant was alleging that the Agency’s EEO Manager did not properly inform her of her rights, this matter was dismissed as a spin-off complaint and referred the matter to the agency official responsible for the quality of complaints processing.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation 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). In its final decision dated, July 26, 2018, the Agency found no discrimination. The Agency dismissed the basis of reprisal. 2 To the extent that Complainant is alleging the EEO Manager did not properly process her complaint, we find the Agency properly dismissed this matter and forwarded the matter to the Agency official responsible for the quality of complaints processing. 2019000361 3 The Agency reasoned that “[s]pecifically, Complainant testified that the EEO activity that she engaged in and opposed involved EEO claims against [Complainant] by her subordinates…[W]e note that the EEOC has held that being named as a responsible management official in an EEO complaint does not constitute protected EEO activity.” Regarding incident (3), management changing Complainant’s tour of duty, the Agency found that management had advised Complainant that she must change her schedule from a 4/10 schedule because her team had expressed concerns about her absence and her unit was not stable. FAD at 9. Regarding incident (5), the Agency found that Complainant volunteered to step down from her Nurse Manager position and that she was not coerced or forced. Regarding incident (6), Complainant’s Fully Successful rating, the Agency found that her supervisor indicated that this rating properly reflected her performance. The Agency, in its final decision, found that Complainant failed to establish that the Agency’s articulated reasons were pretext for discrimination. The Agency further found that the Complainant did not establish a prima facie case of harassment with respect to the other incidents. Specifically, the Agency found that Complainant failed to establish evidence that the alleged incidents were based on her race. The instant appeal followed. On appeal, Complainant reiterates that she was subjected to discrimination based on the actions at issue. Regarding the dismissal of claim (7), Complainant asserts that she was a nurse manager and did not have union membership. ANALYSIS AND FINDINGS Dismissal of the Basis of Reprisal We find that the Agency properly dismissed the basis of reprisal. To the extent that Complainant is alleging that she engaged in protected activity by being named as a responsible management official in EEO complaints from her subordinates, the Agency properly dismissed the basis of reprisal. We have held that a person’s “status as the individual incorrectly accused of discrimination in another employee’s EEO complaint does not, without more constitute protected activity.” Jarmin v. Dep’t of the Navy, EEOC Request No. 05930019 (Dec. 23, 1993). To the extent that Complainant is alleging that the Agency retaliated against her for whistleblower activities, we find the basis of reprisal is also properly dismissed. The Commission has previously held that whistleblower activities are generally outside the purview of the EEO process. See Giannu v. Dep’t of Housing and Urban Development, EEOC Request No. 05880911 (Feb. 13, 1989). In the instant matter, Complainant is alleging that the Agency retaliated against her for raising concerns with patient care and for failing to perform its duties to support hospital staff. Based on the foregoing, Complainant’s whistleblower activities are outside the purview of the EEOC. 2019000361 4 Dismissal of Claim (7) To the extent that Complainant is alleging that the Union President violated the union contract by holding meetings during patient care hours without Complainant’s consent and that the union was encouraging Complainant’s staff to file grievances against her, we find that the Agency properly dismissed this matter for being a collateral attack on the grievance process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for complainant to have raised her challenges to actions which occurred during the union/grievance process is within that forum itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the union/grievance process. To the extent that Complainant alleges that a union official stated to her that “I can see how a white petite woman would be intimidated of [Complainant] who is a big black woman”. We find that this statement alone is not sufficiently severe or pervasive to set forth an actionable claim of harassment. As set forth below, Complainant has not established a prima facie case of harassment with respect to the other alleged incidents as issue. Disparate Treatment Analysis of Claims (3), (5), and (6) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case 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 Dep’t of Cmty. 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2019000361 5 The Agency properly found that Complainant failed to establish that she was subjected to race discrimination with respect to claims (3), (5), and (6). Regarding claim (3), management changed Complainant’s tour of duty, the Agency articulated a legitimate, nondiscriminatory reason for its action. The record contains an affidavit from the Associate Chief Nurse Clinical Operations (ACN). Therein, ACN asserts that “I advised [Complainant] that her team was complaining of her absence (due to her attendance at school as a voluntary faculty member). I let her know that we would not approve her absence for the following semester because managers must change their work schedule when issues arise. Her unit was not stable.” Regarding claim (5), Complainant taking a demotion from Nurse Manager to Staff Nurse, the record contains an affidavit from Complainant’s mentor and fourth level supervisor, the Associate director for Nursing and Patient Care Programs (S4). S4 asserts that Complainant’s decision to step down was voluntary. S4 states that “while mentoring her, Complainant asked [her] if she should step down, to which [she] replied “it was [her] decision....” The record contains a Notification of Personnel Action form indicating that the reassignment was at the employee’s request. Finally, the record contains an email from Complainant to management dated November 23, 2016. Therein, Complainant states that she is resigning from the position of Nurse Manager. Regarding claim (6), her fully successful performance rating, the Agency articulated legitimate, nondiscriminatory reasons for its actions. ACN, in her affidavit, asserts that Complainant’s performance was not higher than Fully Successful in the elements of leading people and leading change. ACN asserts that she pursued the reconsideration procedures.3 We find that Complainant failed to establish, by a preponderance of the evidence, that the actions set forth in claims (3), (5), and (6) were pretext for discrimination. To the extent, Complainant alleges that she was treated differently than some peers, ACN asserted that the other managers had stable units. While Complainant’s performance rating was changed in the reconsideration process to “excellent” by a higher management official, this is insufficient to establish that the Agency’s initial rating was pretext for discrimination. Harassment Analysis To establish a claim of harassment based on race, sex, disability, age, or reprisal, complainant must show that: (1) she is a member of the 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 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 3 The record reflects that Complainant’s rating was changed to “excellent” by S4. 2019000361 6 offensive work environment. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor, complainant must also show that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). As set forth above, in the “disparate treatment analysis section,” Complainant did not establish that the Agency’s actions in claims (3), (5) and (6) were based on her race. Thus, she failed to establish a prima face case of harassment with respect to these matters. Upon review of the record, Complainant has not established a prima facie case of harassment regarding the three remaining matters. Specifically, Complainant has not established that these actions were based on her race. For example, ACN asserts that Complainant was a new manager and after consultation with human resources, she determined that Complainant did not have sufficient evidence against her subordinates to take disciplinary action. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that the Agency’s actions were based on her protected class. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2019000361 7 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. 2019000361 8 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 6, 2019 Date Copy with citationCopy as parenthetical citation