Shanta S.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 3, 2019

0120180216 (E.E.O.C. Apr. 3, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shanta S.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120180216

Agency No. DON-17-61337-00358

DECISION

On October 23, 2017, 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
September 27, 2017, final decision concerning her 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Clinical Registered
Nurse, GS-10, at the Agency’s Beaufort Navy Hospital in Beaufort, South Carolina.

On December 19, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American), age (58), and in reprisal for prior protected EEO activity when:

1. The Agency subjected her to harassment when:

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.
0120180216

2
a. On March 31, 2016, the Agency detailed Complainant to the Education and
Training Department for an excessive period of up to six months pending a fact-
finding investigation for Health Insurance Portability and Protection
Accountability Act (HIPAA) violations;

b. On April 26, 2016, the Agency denied Complainant’s request not to be
transferred back to the Medical Home Port Department because of a hostile
work environment;

c. On September 27, 2016, Complainant’s Department Head issued her a Notice
of Proposed Removal for HIPAA violations; and

d. In or about December 2016, when Complainant requested to be transferred from
the Medical Home Port Department because of a hostile work environment, the
Director of Medicine told her she could take a new job after her retirement; and

2. On November 18, 2016, the Director of Medicine Services issued Complainant a
Notice of Suspension for 14 calendar days.

On March 10, 2016, a physician at the Hospital received a telephone call from the pharmacy stating
that a patient had arrived to pick up a prescription for muscle relaxers. The pharmacy did not see
an order in the system, which prompted the physician to review and sign prescription orders in the
system under her name. When she located the order in question, she realized that Complainant
had entered the order. The physician also noticed that Complainant was not her nurse, and that
she was not the patient’s primary care physician. The physician then notified Hospital leadership.
Moreover, the physician noted that the prescription was for a number of pills that amounted to two
to four times the normal prescription for that type of muscle relaxer.

Complainant’s supervisor (S1) performed an investigation into whether Complainant violated
HIPAA protections. During this investigation, S1 determined that the prescription was for
Complainant’s husband, and that Complainant had accessed her husband’s medical record multiple
times. The medical record also did not contain written permission from her husband to allow
Complainant to access his record. S1 explained that Complainant entered the prescription as a
refill, “making the provider think the patient was already taking this medication and that they had
been seen by the provider. The patient had not been seen for the issue noted and had not had that
medication for many years.”

Complainant’s third-level supervisor, the Director of Medicine (S3) explained that management
detailed Complainant to the Education and Training Department because Complainant’s access to
confidential medical information was suspended during the investigation, which meant she could
not work in a clinical capacity. Complainant’s detail allowed her to remain gainfully employed
without having to access confidential records.

0120180216

3
S3 explained that he was aware Complainant did not want to return to the Medical Home Port
Department and claimed it to be a hostile work environment. S3 asked Complainant to provide
details, but she did not. S3 then assigned Complainant to work with a pediatric provider who had
worked well with her in the past and S3 looked for other positions. However, S3 determined that
there were no other positions available and Medical Home Port was short of nurses, so the Agency
needed Complainant to work there.

As a result of the investigation, management determined that Complainant had accessed her
husband’s medical record 15 times in the preceding decade without a work-related reason and
there was no evidence that Complainant’s husband had given her authorization to do so.

Complainant argued that she worked as a triage nurse and that her husband called her while she
was at work. Because Complainant’s husband initiated the telephone call, Complainant contended
she had inherent authorization to access his records. Complainant claimed that all actions she took
were in her normal capacity as a triage nurse. Complainant also argued that her return to Medical
Home Port constituted a hostile work environment because she was forced to sign a document
stating she would be under constant computer monitoring at all times.

After the investigation was complete, management proposed to remove Complainant, as alleged
in Claim (1)(c). The removal detailed Complainant’s actions, and further explained that the
medication Complainant had entered for her husband had not been requested since 2013, which
required her husband to be seen by a medical provider first. Further, Complainant’s “relationship
with the patient does not automatically give [her] the authority to access his medical record. In
fact, the relationship with the patient actually restricts [her] access to his medical record to prevent
unethical behavior and HIPAA violations.” According to the Notice, if Complainant needed to
access her husband’s medical records, Agency protocol required Complainant’s husband to
complete an Authorization form and submit it to the Agency. Even then, the form would only
authorize Complainant to request and receive information, not to initiate a prescription.
Management concluded that Complainant cannot be trusted to care for patients in a safe manner
and proposed her removal.

After Complainant responded to the Notice, management decided to downgrade Complainant’s
removal to a 14-day suspension. Complainant objected to the timing of the suspension, since it
took place during the week of Thanksgiving and left her without a paycheck for the holiday period.
Complainant believed she was suspended at this time “to be cruel.”

Complainant also alleged that S3 told her she could take a job after she retired. Complainant
explained that she applied for a position in Risk Management and had an interview. Complainant
was awaiting the results of the HIPAA investigation when she asked S3 to leave the Medical Home
Port Department. S3 responded that Complainant would have to come back for the Risk
Management job after she retired. Complainant interpreted that to mean that her life would be
very difficult until she left federal service. S3 denied making this comment to Complainant.

0120180216

4
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 the decision, the Agency first concluded that Complainant failed to establish a prima facie case
of reprisal. The Agency then concluded that management provided legitimate, nondiscriminatory
reasons for its actions and Complainant was unable to establish that management’s reasons were
pretext for discriminatory or retaliatory animus. The Agency also concluded that Complainant did
not establish that the conduct alleged was sufficiently severe or pervasive to constitute a hostile
work environment. As a result, the Agency found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Hostile Work Environment

To establish a claim of discriminatory hostile environment harassment, Complainant must show
that: (1) she belongs to a 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 her 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; and (5)
there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).

In short, to prove her harassment 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, because of her race, sex, national
origin, age, or for engaging in prior protected EEO activity. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission notes that Complainant chose not to request a hearing; therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented.
0120180216

5
Here, Complainant asserted that based on her protected classes, management officials subjected
her to a hostile work environment. Complainant alleged several incidents of what she believed to
be discriminatory harassment. The Commission finds that the totality of the conduct at issue was
insufficiently severe or pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, the Commission finds that Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus. The record reflects that the alleged
incidents were more likely the result of routine supervision, managerial discipline, and general
workplace disputes and tribulations. More specifically, the Agency explained that it became aware
of a potential HIPAA violation by Complainant and reassigned her to a position where she would
not need to access confidential medical records during the investigation into the HIPAA violation.
While Complainant requested to not be transferred back to her original position, Complainant was
returned because there was no other position to permanently transfer her and she was not using her
clinical skills in the Education and Training Department. Management officials denied that
Complainant ever reported any specific examples to support her report of a hostile work
environment or for management officials to take any action upon. At the conclusion of the
investigation, the Agency issued Complainant a notice of proposed removal and then mitigated it
to a 14-day suspension in addition to intensive monitoring. The Agency explains that it took all
actions it took because Complainant violated HIPAA. Furthermore, S3 denied making the
comment about Complainant taking a new job after her retirement.

The Commission concludes that Complainant has not shown, based on the totality of the
circumstances, that she was subjected to a discriminatory or retaliatory hostile work environment.
Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the
Commission finds that, as discussed above, Complainant has not demonstrated that the Agency's
explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission
finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment
as alleged.

0120180216

6
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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. 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.
0120180216

7
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

April 3, 2019
Date