[Redacted], Aurore C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 29, 2022

Appeal No. 2022001363 (E.E.O.C. Nov. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aurore C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001363 Hearing No. 510-2019-00484X Agency Nos. 200I-0673-2019102528 200I-0673-2019100449 DECISION On January 13, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 15, 2021 final order concerning two equal employment opportunity (EEO) complaints 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 relevant time, Complainant worked for the Agency as a Registered Nurse in the Gastroenterology Lab at the James A. Haley VA Medical Center in Tampa, Florida. On May 3, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (African American) and sex (female) when: 1. Complainant was subjected to a hostile work environment during the period June 2018 to January 2019, as evidenced by the following allegations to: 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. 2022001363 2 (a) duty performance, such as changing wound dressings, erasing chart notes, immunization, and taking orders from a non-BHCP providers; (b) issues relating to parking; (c) issues relating to training; (d) issues regarding her workload; and (f) being yelled at and “disparaged” by other supervisors. 2. Complainant was subjected to a hostile work environment based on reprisal for prior EEO activity when: (a) her request to be detailed temporarily to a different office was ignored, and a fact-finding was conducted; (b) on February 19, 2019, Complainant was issued a proposed Admonishment, which was reduced to a written counseling on March 18, 2019; (c) on March 4, 2019, Complainant received notification that a fact-finding was pending; and (d) on March 17, 2019, Complainant was permanently reassigned to the Tamp VA GI Lab.2 After its investigation into the allegations, 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 Agency filed a timely a motion for summary judgment on February 1, 2021. Complainant objected. However, the AJ issued a decision by summary judgment in favor of the Agency. Thereafter, the Agency issued its final order adopting the AJ’s finding of no discrimination or unlawful retaliation. The instant appeal followed. 2 On February 5, 2019, Complainant filed the formal complaint identified as Agency No. 200I- 0673-2019199449). The Agency issued a final decision, dismissing this complaint for failure to state a claim. On appeal, the Commission reversed the dismissal and remanded the complaint for further processing. Complainant v. Department of Veterans Affairs, EEOC Appeal No. 2019002651 (June 18, 2019). Complainant thereafter filed the other captioned complaint, Agency No 200I-0673-2019102528. The two complaints were consolidated for processing. 2022001363 3 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material’ if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record o by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To prove her discriminatory harassment/hostile work environment 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 a protected basis - in this case, her race, sex or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). On the issue of harassment based on race or sex, the AJ provided a concise analysis reflecting a conclusion that there was no evidence that Complainant’s race or sex played any role whatsoever in the assignment of work, supervisory instructions or Complainant’s workload. that there was no discrimination based on discriminatory harassment. The AJ noted further that an employer clearly has discretion to determine how best to manage its operations. The AJ also found no evidence that any of Complainant’s allegations reflected severe, abusive, physically threatening or humiliating conduct, or interfered with Complainant’s work performance. We find no error in the AJ’s findings. 2022001363 4 Regarding reassignment, the AJ noted, and the record so supports, that Complainant requested reassignment due to an ineffective work relationship, the reassignment occurred, and that the reassignment was not motivated by harassment. Regarding parking, the AJ noted that Complainant’s entire group was sent correspondence advising employees about parking requirements, that Complainant had previously been parking off the Agency premises in a location not close to her patients. Any parking arrangements were made to improve personal work time commutes. Regarding a proposed admonishment regarding the 48-hour charting rule,3 which was mitigated to a counseling, there was no dispute that in response to the proposal, Complainant claimed that although it had been more than 48 hours, she had not been at work for two days, and the charting note was within the required time frame. The Chief Nurse, Geriatric and Extended Care (African American, female) considered Complainant’s response and determined a proposed admonishment was inappropriate. However, the fact finder discovered multiple incidents in which Complainant had violated the “48-hour requirement” and other concerns about documentation. Therefore, the Chief Nurse determined that counseling Complainant on the requirement was necessary. The Medical Director (Caucasian, female) reported concerns over Complainant’s performance on April 9, 2018, related to discrepancies in documentation and performance compared to peers with respect to number of visits, timely documentation, reliability, veracity of card logs, progress notes being incorrectly coded as face to face visits for phone calls, and progress notes being backdated. She noted that Complainant refused further training. Moreover, the Medical Director stated that in August 2019, documentation reflected Complainant missing visits, failure to collect labs, failure to report findings, and failure to document timely. Regarding reassignment, the Chief Nurse stated that on August 13, 2018, the Home Base Primary Care (HBPC) Program Director emailed her and the Nurse Manager stating the Advance Registered Nurse Practitioners were very concerned with Complainant’s work to the point where they are requesting removal of Complainant and to not assign her to anyway else in HCPC. Moreover, the HBPC Program Director requested that they meet with the Medical Director. The Associate Director, Patient Care/Nursing Services (Caucasian, female) was involved in the reassignment of Complainant. She stated that following Complainant’s mediation, Complainant requested the reassignment to the GI Lab. The Associate Director asserted that Complainant was not forced to transfer and that it was her responsibility to find a suitable reassignment for Complainant based on the overall needs of Nursing Service. Complainant was reassigned to the GI lab based on Perioperative Nursing Service needs and her request to be reassigned. 3 Agency policy requires the documentation of patient visits within 48 hours. 2022001363 5 The Chief Nurse explained that in October 2018, the Nurse Manager conducted a fact-finding which did not substantiate any physical threats toward Complainant. The fact-finding reflected further that Complainant did not provide documentation of derogatory statements toward her, or any evidence related to bullying/harassment incidents. In addition, there were no witnesses to any of the allegations of harassment. Here, the preponderance of the evidence does not establish that Agency management was motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation was established. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2022001363 6 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022001363 7 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 November 29, 2022 Date