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

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2022003034 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ira A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022003034 Hearing No. 510-2022-00054X Agency No. 200I-0675-2021105396 DECISION On May 2, 2022, 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 April 8, 2022, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Certified Registered Nurse Anesthetist (CRNA), 0605, VN-3 at the Agency’s Medical Center in Orlando, Florida. On September 14, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on August 9, 2021, Complainant resigned from federal service in lieu of removal (constructive discharge). 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. 2022003034 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s May 18, 2022, pre-hearing motion and issued a decision without a hearing on April 5, 2022. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant’s first-line supervisor (Supervisor-1) from December 22, 2019, until Complainant’s resignation was a Chief CRNA. Complainant’s second-line supervisor (Supervisor-2) was the Assistant Chief of Staff, Anesthesiology and Physical Medicine Service. In May 2019, two colleagues of Complainant reported concerns to management regarding Complainant’s administration of anesthesia medications to patients. The colleagues framed their concerns as a “diversion” issue, referencing the Agency’s Narcotic and Controlled Substances Accountability in the Medical Center Areas Outside the Pharmacy policy. Agency police investigated the matter (Diversion Investigation). Ultimately, Complainant received a formal reprimand on February 24, 2020, for conduct revealed during the Diversion Investigation. This investigation and the associated reprimand are not at issue. Following the conclusion of the Diversion Investigation, Complainant personally investigated, in part, to determine who made the initial reports of misconduct. On August 27, 2020, Supervisor- 1 sent Complainant an email stating that Complainant’s questioning of individuals in different departments regarding the Diversion Investigation must cease immediately. Complainant admitted that he did not follow these instructions. Rather, Complainant admitted he was “trying to figure out who” reported him and that when he “figured out who it was or who one of them was…[he] filed a slander lawsuit against him.” Multiple of Complainant’s coworkers documented Complainant’s asking them questions related to the Diversion Investigation. On June 4, 2021, Supervisor-2 found an operating room schedule on the floor of a hallway accessible to staff and veterans. The document listed veterans’ names with their social security numbers, ages, and proposed surgeries. The document also included medication labels identifying what medications veterans received. The medication labels were specific to the administering nurse and were connected with Complainant. On August 4, 2021, Supervisor-2 issued Complainant a Notice of Proposed Removal. The reasons provided in the proposed removal included Complainant’s failure to follow instructions, conduct unbecoming, and failure to safeguard medical information. The first two reasons related to Complainant’s ongoing, personal investigation. The last reason was due to Complainant’s failure to safeguard the personally identifiable information on the operating room schedule. 2022003034 3 On August 9, 2021, Complainant sent an email to Agency stating that he was resigning due to retirement. Complainant reported in his affidavit that he resigned because he could not risk the loss of his healthcare and retirement benefits. Complainant contends that the potential loss of healthcare and retirement benefits were the intolerable conditions that forced him to resign. 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). 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. Subjective belief or speculation as to motive, intent, or pretext is not sufficient to satisfy the complainant’s burden. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). 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. 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). In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. We note on appeal, Complainant does not dispute the definition of the accepted claim. To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2022003034 4 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The central question in a constructive discharge claim is whether the employer, through its unlawful discriminatory behavior, made the employee’s working conditions so difficult that any reasonable person in the employee’s position would feel compelled to resign. Complainant v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002), request for recon. denied EEOC Request No. 05A20761 (Dec. 4, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant’s position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant’s involuntary resignation resulted from the intolerable working conditions. See Complainant v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995); Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120182129 (June 7, 2019). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged basis. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the personnel action at issue. Specifically, the Notice of Proposed Removal provided the three reasons of failure to follow instructions, conduct unbecoming, and failure to safeguard medical information. Complainant admitted to continuing the investigation and contacting coworkers regarding the Diversion Investigation despite contradictory supervisory instructions. Furthermore, the medication labels adhered to the operating schedule were associated with Complainant. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted based on discriminatory or retaliatory animus. The focus of a pretext analysis is on whether the Agency’s actions were motivated by discriminatory animus. A complainant cannot establish the existence of pretext merely by asserting that a decision was arbitrary, unfair, a mistake, or an error in judgment. Nor is it enough for complainant to disagree with or question the Agency’s actions. 2022003034 5 A complainant must show that discrimination was the real reason for the Agency’s actions. He must provide evidence and facts that would enable a fact finder to conclude that the reasons given by the Agency are a sham to cover up its real and unlawful motive. Here, Complainant simply does not provide evidence of discrimination or pretext. Regarding the constructive discharge aspect of the claim, Complainant has failed to show that the working conditions were intolerable. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 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). 2022003034 6 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. 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 2, 2023 Date