[Redacted], Brittney B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jul 19, 2022

Appeal No. 2021001588 (E.E.O.C. Jul. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brittney B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001588 Hearing No. 541-2019-00001X Agency No. 2003-0554-2018102870 DECISION On January 6, 2021, 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 January 6, 2021, final order 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 Licensed Practical Nurse (LPN), GS-06, Step 7, at the Agency’s Eastern Colorado Health Care System in Denver, Colorado. On May 21, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on sex (female) and in reprisal for prior protected EEO activity when: 1. On June 20, 2017, Complainant’s first-level supervisor (S1), Nurse Manager, failed to investigate when Complainant’s co-worker (CW), RN, verbally attacked 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. 2021001588 2 Complainant, and blocked her exit out of the room, and subsequently refused to interact with her. 2. In October 2017, Complainant was “formally admonished” for a two-year period. 3. On October 18, 2017, S1 issued Complainant a “fully successful” rating on her annual performance evaluation when she deserved an “excellent” rating. 4. On January 23, 2018, CW did not permit Complainant to provide care to patients assigned to him. 5. On January 24, 2018, S1 failed to investigate a report of harassment concerning Complainant and CW when CW “growled” at her. 6. On January 25, 2018, the Acting Nurse Manager (ANM), who was also the Selecting Official, requested Complainant to tell her side of the story of what was going on with her and CW during an interview. 7. On February 7, 2018, Complainant became aware of her non-selection of the Licensed Practical Nurse (LP) (Mental Health/Late Night) position. 8. On March 15, 2018, Complainant became aware of her failure to qualify/non- referral for the Administrative Officer for Emergency Department and Occupational Health position. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the assigned AJ granted the Agency’s August 22, 2020 motion for a decision without a hearing. The AJ issued a decision by summary judgment in favor of the Agency on January 4, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that no discrimination or unlawful retaliation was established. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2021001588 3 In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or 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 the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Claim 1 Complainant alleged that the registered nurse (CW) (male) she was assigned to work with verbally attacked her on an identified date and blocked her exit out of the room. She further asserts he then refused to interact with her. However, Complainant conceded that, within minutes of the identified incident, S1 (male) met with her, and that S1 later informed her that he spoke with CW regarding the incident. Complainant also testified that S1 had a meeting with both CW and her to resolve the issue. Additionally, S1 provided Complainant with another registered nurse to work with, and the work group, including CW and Complainant, was provided “Hostile Work Environment” training following the incident. Claims 2 and 3 The record reflects that Complainant received a proposed admonishment on October 26, 2017 for “Unprofessional Conduct” when she called a co-worker a “kiss ass.” Complainant denied calling the co-worker a “kiss ass” directly, and the record indicates that Complainant may have made the comment to a third party. The record also indicated that the incident took place on September 26, 2017. The proposed admonishment was sustained, and Complainant was issued a letter of that decision on November 14, 2017. The decision letter advised that the admonishment would remain in Complainant’s Electronic Official Personnel File for a two-year period, or it could be withdrawn or destroyed after six-months, depending on her behavior and performance.2 Complainant received a rating of “fully successful” on her annual performance evaluation on October 18, 2017. 2 The Agency also argues that claim 2 should be dismissed because Complainant also appealed the admonishment through the negotiated grievance process. Because we have reviewed claim 2 on the merits, we find it unnecessary to address dismissal on procedural grounds. 2021001588 4 Complainant stated that she deserved an “excellent” rating. S1, Complainant’s rating official, testified that Complainant met the requirements for a “fully successful” rating. Complainant, however, did not meet the requirements for an “excellent” rating. S1 also testified that Complainant appealed her rating through the negotiated grievance process. The record indicates that, to achieve an “excellent” rating, Complainant needed to also excel at interpersonal interactions with colleagues/teamwork. While the performance evaluation occurred prior to Complainant receiving an admonishment, it was after the incident which occurred in claim 2. S1 noted, in Complainant’s evaluation, that she needed to improve her communication with other RNs and LPNs. Claims 4 and 5 Complainant stated that CW did not permit her to provide care to patients assigned to him. There is nothing in the record that reflects that CW did not allow Complainant to provide care to his patients based on discriminatory animus. Complainant appears to be identifying “everyday workplace interactions which include “professional disagreements, differences in management styles, and personality conflicts” insufficient to establish a violation of Title VII. Day-Hill v. Holder, EEOC Appeal 0120101307 (August 28, 2012). Complainant stated that S1 failed to investigate an incident in which CW “growled” at her. The record does not support this claim, as S1 was on leave. Another management official, however, met with Complainant regarding the allegation. Additionally, when S1 returned from a vacation, he met with Complainant and facilitated her move to a different team as she requested. Even construing the events in a light most favorable to Complainant, the incident does not rise to the level of harassment. Further, there is no indication that discriminatory animus was a factor. Claim 6 Complainant asserted that the ANM (female) asked to hear Complainant’s side of her interactions with CW, during the interview process. ANM testified that she asked Complainant why she was seeking a change in position, in what she described as a typical interview question. ANM further stated that Complainant volunteered the information about the situation between her and CW. Additionally, Complainant has not indicated how ANM’s question was motivated by discriminatory animus toward Complainant’s sex or how ANM would have been aware of Complainant’s protected activity. Claims 7 and 8 Complainant stated that she became aware that she was not selected for an LP position. The record indicates that there was no vacancy for the LP position. Instead, Complainant had an interview with ANM to see if she would be suitable for a future position, if one became available. The interview with ANM was done at the request of another management official. 2021001588 5 Finally, Complainant testified that she did not believe that her protected statuses of sex or prior EEO activity were the reason for her non-selection of the position of Administrative Officer. The record supports a determination that Complainant did not qualify for the position because she lacked the requisite time in grade, which could not be substituted for with education. Regarding claims 7 and 8, the Agency articulated its legitimate, nondiscriminatory reason for its actions. Complainant did not identify how that rationale was pretext for discrimination. Finally, in summary, viewing the instant complaint in the context of a harassment analysis, we determine that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. 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). 2021001588 6 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 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. 2021001588 7 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 July 19, 2022 Date