Taunya P.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionNov 21, 20180120172082 (E.E.O.C. Nov. 21, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Taunya P.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120172082 Hearing No. 560-2015-00041X Agency No. ARSILL14JAN00159 DECISION On May 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 April 28, 2017, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Medical Support Assistant (MSA), GS-0679-04 at the Agency’s Department of Behavioral Health, Reynolds Army Community Hospital in Fort Sill, Oklahoma. On March 21, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (generalized anxiety disorder) and in reprisal for prior protected EEO activity 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. 0120172082 2 1. on November 12, 2012, the Agency denied Complainant’s repeated requests for training; 2. in July 2013, the Agency issued Complainant an unsatisfactory rating on her performance appraisal without any training or counseling; 3. on July 29, 2013, the Agency suspended Complainant for five days; 4. on January 7, 2014, the Agency placed Complainant on a 90-day Performance Improvement Plan (PIP); wrongly accused Complainant of recording a conversation with her first- and second-line supervisor (S1 and S2); and the Agency assigned Complainant to shadow a coworker (CW1) who was uncooperative; 5. on January 17, 2014, an unknown person removed Complainant’s personal notes from her locked desk without her consent. S2 returned the notes without explaining how he obtained the notes; and 6. on January 23, 2014, Complainant was forced to resign and was therefore constructively from her employment. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter held a hearing on January 24, 2017, and issued a decision on April 17, 2017. The Behavioral Health Non-Commissioned Officer was Complainant’s first-level supervisor (S1). The Health Systems Specialist was Complainant’s second-level supervisor (S2). The Behavioral Health Department Chief was Complainant’s third-level supervisor (S3). The Deputy Commander for Clinical Services at Reynolds Army Community Hospital was Complainant’s fourth-level supervisor (S4). Complainant initially worked at the Agency’s Army Substance Abuse Program and filed an EEO complaint prior to her move to Behavioral Health. Around that time, Complainant suffered a panic attack and went to the emergency room. Complainant went on leave from October 25, 2012 until November 19, 2012. Upon her return from leave, Complainant accepted a transfer to Behavioral Health. Immediately upon reporting to Behavioral Health, Complainant asked for advanced leave. S2 denied the request because Complainant had no paid leave available. S2 did, however, permit Complainant to use Leave Without Pay (LWOP). Utilizing LWOP, Complainant remained out until early December 2012. The AJ found that the record contained no evidence Complainant put her supervisors on notice of her medical impairment. While Complainant submitted FMLA paperwork to the Agency’s Human Resources department that listed her disability, the AJ found that Complainant provided no testimony or evidence that her medical information was communicated from Human Resources to any of her supervisors at Behavioral Health. 0120172082 3 As to claim (1), the AJ concluded that the record evidence demonstrated that Complainant received training, just not the type she wanted. The record showed that Complainant received eight days of training on how to use Armed Forces Health Longitudinal Technology Application (AHLTA) from one of her first supervisors in Behavioral Health. AHLTA is a software program that combines and streamlines digital medical records and medical appointments. S2 testified that upon Complainant’s arrival to Behavioral Health, she had another MSA provide Complainant with training on AHLTA, including how to check patients in, how to perform “T-cons,” how to cancel a patient, when to cancel a patient, and additional duties. A T-cons is a note in AHLTA to alert a physician of an issue with a patient. The record included a list of training courses that Complainant completed. Although none of the course titles were specific to AHLTA, testimony established that the training Complainant received pertained to all the components of AHLTA. S1 also confirmed that employees needed a log-in and password to access the AHLTA system, and it was highly unlikely that Complainant would have received her log-in and password had she not sufficiently completed training when she first came on board. Complainant’s coworker (CW1) further confirmed that other than the initial training on AHLTA, there was no continuing education available. Despite this, one of Complainant’s initial first-line supervisors trained her on AHLTA for eight days and expressed concern via email that she still was unable to sufficiently operate the system. Testimony from both Complainant and her supervisors demonstrated that Complainant had difficulty entering T-cons. In one instance, Complainant used a sticky note instead of entering the information, which resulted in a potential breach of patient safety. Regarding claim (2), the parties did not dispute that Complainant received an unsatisfactory rating in July 2013 as alleged. Further, Complainant did not deny that she had performance issues and more than 15 individuals complained about her performance. Complainant was also aware that she was suffering from performance deficiencies as evidenced by multiple meetings with her supervisor. The AJ noted that Complainant denied she ever received counseling, only to admit that she received counseling six and three months prior to her performance appraisal. The record contained evidence that Complainant regularly refused to acknowledge receipt of documents given to her by the Agency, including performance appraisals. Moreover, the AJ found credible the Agency’s explanation that Complainant suffered from performance deficiencies because the Agency received numerous complaints from a broad range of employees. With respect to claim (3), management originally issued Complainant a Notice of Proposed Removal in July 2013, because it had received multiple complaints about Complainant’s performance.2 After Complainant appealed her removal, S4 reduced the removal to a five-day suspension in October 2013. S4 had no notice of Complainant’s prior EEO activity or disability and testified that he believed the documents supporting the notice of removal warranted some discipline, but did not warrant removal. As a result, the AJ concluded that the Agency issued Complainant the five-day suspension due to well-documented performance issues. 2 Complainant did not argue that the Notice of Proposed Removal constituted discrimination or part of her hostile work environment allegation. 0120172082 4 As to claim (4), following her suspension, Complainant went out on FMLA leave. In January 2014, after she returned from FMLA leave, S4 determined that Complainant should be put on a PIP. The PIP was intended to ensure that Complainant received new training and to track her progress. Management normally engaged in the PIP process when an employee received an unsatisfactory rating on his or her performance appraisal. Although Complainant received her performance appraisal in July 2013, S3 testified that the Agency did not immediately begin the PIP process because Complainant did not return to the department until January 2014. In July 2013, at approximately the same time Complainant received her unsatisfactory performance rating, S3 temporarily transferred Complainant to another department,3 and Complainant took extended leave before returning to Behavioral Health. Complainant resigned from employment before the PIP could be implemented. As to Complainant’s allegations that S1 and S3 accused her of recording a conversation, the AJ accepted S1’s and S3’s testimony that they believed Complainant was recording a conversation between the three of them, but that they made no accusations and did not pursue the matter. S1 specifically testified that Complainant sat down, took her phone out of her purse, pressed a button, and set it down on her thigh. Conversely, the AJ found that Complainant’s testimony – that she was on the phone with her husband and was ending the call – was not credible because she contradicted herself and changed her story. Regarding her claim that she was assigned to shadow a co-worker, the AJ found that Complainant’s assignment to her co-worker (CW2) for shadowing and training was not improper. The AJ concluded that claim (5) consisted of nothing more than speculation. Moreover, Complainant did not dispute S3’s explanation at the hearing that Complainant left her notebook behind at a meeting and S3 was simply returning the notebook to Complainant. The AJ made credibility determinations based on the testimony. The AJ concluded that Complainant’s testimony was “highly unbelievable” because she was unable to communicate dates, times, and places, and denied ever receiving training despite the sensitive nature of her position. The AJ determined that Complainant failed to establish a prima facie case of discrimination and reprisal. The AJ further determined that the Agency provided legitimate, nondiscriminatory reasons for each action, and that Complainant failed to show these reasons were pretext for discrimination. The AJ also concluded that Complainant failed to show that she was constructively discharged as she failed to demonstrate that the conditions at her workplace were so intolerable that she was forced to resign or that the Agency’s actions were based on discriminatory or retaliatory animus. Thus, the AJ concluded that Complainant was not subjected to discrimination, reprisal, a hostile work environment, or a constructive discharge as alleged. 3 S3 explained that he transferred Complainant to a position away from patients due to the sticky note issue previously mentioned. S2 explained that Complainant had used a sticky note instead of a T-cons to record a patient interaction, and did not give the sticky note to the medical provider until days later. Complainant did not dispute her transfer or raise it as a claim in this complaint. 0120172082 5 The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL Complainant articulates numerous arguments on appeal. We summarize some of these arguments herein, but take all arguments in consideration in this decision. Complainant argues that the AJ made findings of fact, particularly as to Complainant’s credibility, that were contrary to evidence in the record. Complainant insists that her workplace performance was favorable and her demeanor was contrary to that found by the AJ. Complainant points to her satisfactory performance with the Agency prior to her arrival at Behavioral Health and testimony by CW1 as evidence that the AJ’s findings were incorrect. Complainant continues to deny she was trained on AHLTA. Complainant also argues that the AJ did not consider that Complainant received insufficient training on AHLTA in considering whether the Agency properly issued Complainant an unsatisfactory performance appraisal. As to her five-day suspension, Complainant argues that “[c]ase law is well settled that public agencies must follow a progressive discipline format,” but cites no case law in support. Complainant insists that she was on a PIP when she returned to work in January 2014 despite the AJ’s finding to the contrary; S3 and S1 placed her on an “oral 90-day Performance Improvement Plan (PIP).” As to the removal of her notebook, Complainant argues that CW1 provided testimony that established that she had a habit of keeping the notebook in a locked drawer, not leaving it on a table as S3 testified. Complainant argues that a verbal attack by one of the physicians in the Spring 2013 sufficiently established the basis for her constructive discharge in January 2014. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 0120172082 6 Based on a thorough review of the record and all arguments therein and on appeal, including those facts and arguments not specifically mentioned here, we accept the AJ’s credibility determinations. Further, Complainant’s arguments on appeal do not establish that the AJ’s decision is not supported by substantial evidence in the record. Disparate Treatment To prevail in a disparate treatment claim, 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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28. 1990): Peterson v. Dep’t. of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31. 1990). In the instant complaint, the Agency articulated a legitimate, nondiscriminatory reason for each of its actions. On claim (1), the Agency established that Complainant was given the same training as any other MSA, and the Agency also gave her additional training. The Agency further provided documentary evidence that one of Complainant’s first-line supervisors trained her for eight days on AHLTA, but she still was unable to use the system. For claim (2), the Agency showed that Complainant was the subject of multiple complaints and incorrectly conveyed information to medical providers. In claim (3), S4 explained that evidence of Complainant’s misconduct warranted Complainant’s suspension for five days. Regarding claim (4), the Agency established that it was standard for an employee to be placed on a PIP if the employee received an unsatisfactory performance appraisal. As to claim (5), substantial record evidence supports that nothing was stolen from Complainant’s desk. As the Agency articulated legitimate, nondiscriminatory reasons for its actions, Complainant has the burden of demonstrating that these reasons are pretext for discriminatory animus. We find that Complainant has not carried her burden. 0120172082 7 Accordingly, the Commission finds that substantial record evidence supports that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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 employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 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 (Mar. 8, 1994) (Enforcement Guidance on Harris). An agency is liable for unlawful harassment by a co-worker if it knew or should have known of the alleged harassment, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1604.11(d). 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that substantial record evidence supports that Complainant was not subjected to a hostile work environment. Where the Agency has articulated a legitimate reason for each of its actions, these actions simply cannot form the basis of a hostile work environment. As Complainant has failed to show that the Agency’s actions were motivated by discriminatory or retaliatory animus, the Commission finds that Complainants’ hostile work environment claim must fail. Constructive Discharge In Claim (6), Complainant alleges she was constructively discharged from her employment. 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) the 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. Clemente M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120160661 (Mar. 11, 2016), citing Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As stated above, the Commission finds that Complainant has not demonstrated that the Agency’s actions were motivated by discriminatory or retaliatory animus. Thus, the Commission finds that Complainant cannot establish the necessary elements to prove constructive discharge. 0120172082 8 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 order. 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. 0120172082 9 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 November 21, 2018 Date Copy with citationCopy as parenthetical citation