Tomeka T.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 4, 2020

2019001973 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tomeka T.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019001973 Hearing No. 530-2017-00049X Agency No. 2004-0460-2016101270 DECISION On November 14, 2018, 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 October 17, 2018 final order 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 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 Registered Nurse II, Level 2 at the Agency’s Medical Center in Wilmington, Delaware. On January 15, 2016, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of her race (Caucasian), disability (multiple sclerosis), and in reprisal for prior protected EEO activity as evidenced by the following incidents: 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. 2019001973 2 1. Since July 2015, S2 had asked Complainant if she was interested in a temporary assignment as a wound care nurse until the position was filled permanently; 2. Since August 2015, the Nurse Manager, her first-line supervisor (S1), bullied and harassed Complainant and S2 did nothing about it after Complainant had informed her of the situation; 3. On August 6, 2015, S1 verbally attacked Complainant, interrupting her, talking over her, and accusing her of not completing her day-shift wound treatments; 4. On November 19, 2015, S1 and the Charge Nurse (CN) denied Complainant the administrative time she needed to complete her wound care tasks; 5. On November 19, 2015, Complainant informed the Associate Chief Nurse, her second- line supervisor (S2), that S1 had been assigning her between 30 and 40 wound care patients at the end of her shift and that this workload was too much for her; 6. On December 16, 2015, when Complainant reported a medical error to S2, S2 made her input the incident into the Event Patient Reporting System (EPRS); and 7. On January 4, 2016, Complainant became aware that she had not been selected for the position of Registered Nurse in charge of wound care. 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 held a hearing on July 2, July 3, and August 31, 2018, and issued a decision on September 19, 2018, finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. Incident (1) Complainant testified that since July 2015, S2 had been asking her if she was interested in a temporary assignment as a Wound Care Nurse until the position could be filled permanently. She testified that beginning in July 2015, she was temporarily assigned as a wound care nurse and that she was serving as a backup to the nurse who normally performed wound care duties. She stated that she would be doing wound care every day, in addition to her regular duties, and that no one else was available to give her any relief. S2 had made Complainant an offer to work wound care as a temporary assignment and stated that Complainant was not the only nurse who performed wound care duties. S1 testified that the entire nursing staff performed wound care. Complainant herself admitted that there was no indication that she was not supposed to be doing so. S2 testified that Complainant had asked her if she could assess wounds on her work days, and that it took Complainant a while to complete and document the treatments she administered. Incident (2) Complainant testified that since August 15, 2015, S1 repeatedly berated her, spoke to her harshly, bullied her, and blamed her for work not being accomplished. At the hearing, she admitted that while S1 started bullying her in August 2015 she did not raise the issue with S2 until November 2015. 2019001973 3 S2 testified that Complainant had come to her to report that S1 had been speaking to her in a rude and harsh manner but that Complainant had never told her that she was being bullied because she was White, because she had a disability, or because she had engaged in prior EEO activity. Incident (3) Complainant testified that on August 6, 2015, S1 verbally attacked her, interrupted and talked over her, and accused her of not completing her day shift wound treatments when she approached S1 regarding a plan for wound care. She testified how S1 yelled at her and spoke to her in an angry tone. She further stated that she reported the incident to S2 and that S2 made no effort to resolve the problem. Although S1 acted harshly and unprofessionally toward her subordinates, and was often a bully, Complainant never mentioned to S2 that the incident had anything to do with her race, disability, or EEO activity. Complainant also admitted that S1 never disciplined her for her work performance and at times lauded her work. Incident (4) Complainant testified that on November 19, 2015, S1 and CN denied her the time she needed to complete administrative tasks incident to her wound care treatments. She also testified that she had asked if she could be taken off wound care detail because she found the work overwhelming. Both S1 and CN testified that they afforded her whatever time she needed to complete the paperwork related to wound care treatments. Incident (5) Complainant testified that on November 19, 2015, she met with S2 to explain that her wound care assessment duties were excessive in that S1 had assigned her between 30 and 40 wound care patients at the end of her shift. Complainant maintained that S1 had made those assignments in order to set her up for failure. S2 denied this allegation in its entirety, testifying that she had granted Complainant administrative leave at times. Incident (6) Complainant testified that on December 16, 2015, when she reported that she had made an error regarding medication to a patient, S2 ordered her to input the incident into the EPRS. She testified that an African-American Licensed Nurse Practitioner who had also made an error was not required to do the same. S2 responded that the purpose of the EPRS was to compile medical errors for risk management and quality assurance purposes and was not punitive in any way, and that everyone was required to enter errors into the EPRS. Complainant admitted that reporting incidents in the EPRS was necessary to improve operations, processes, and practices. 2019001973 4 Incident (7) Complainant testified that on January 4, 2016, S2 informed her that she had not been selected to be the Registered Nurse in charge of wound care. Complainant maintained that the vacancy announcement did not require wound care experience, and that she was the best qualified among the first round of selectees. S2 testified that the vacancy was for a designated wound care nurse who would have responsibility for overseeing the entire wound care program, including functions such as reporting data, policy development, and staff education. The vacancy announcement indicated that preferred experience included previous wound care experience as well as wound care certification. S2 confirmed that she had prepared the vacancy announcement and that she was not allowed to say that certification was required. S2 also testified that while Complainant was one of the top three candidates, she was ranked third, the lowest. S2 also testified that afterward, she advised Complainant to obtain certification for wound care if that was her passion. 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). Disparate Treatment 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, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to adverse employment actions under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since S1 and S2 articulated legitimate and nondiscriminatory reasons for their actions vis-à-vis Complainant as were set forth in detail above. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must show that the explanations put forth by the Agency for the various incidents were pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2019001973 5 Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). In non-selection cases, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). The Commission notes, however, that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). The Commission cannot second-guess such personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Here, Complainant received a second interview but was ultimately ranked third of the three candidates. Agency officials testified that wound care certification was highly preferred for the position at issue and Complainant did not possess such a certification. By contrast, the selectee for the position had numerous years of wound care experience and had five wound care certifications. We find that substantial record evidence supports the AJ’s finding that Complainant failed to present any evidence tending to show that her qualifications for the wound care nurse position were plainly superior to those of the other candidates, including the selectee. Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). On appeal, Complainant contends that the AJ erred in finding that none of the named officials were aware of her disability and in finding no disparate treatment due to the fact that S1 had taken disciplinary actions against African-American employees. Apart from her own assertions, Complainant has presented neither hearing testimony, affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by S1, S2 or the CN, which establish the existence of any of the indicators of pretext listed above, or which cause us to question the veracity or the credibility of S1, S2, or the CN as witnesses. Her appeal addresses neither the AJ’s specific findings on the seven incidents comprising Complainant’s claim nor the AJ’s credibility findings with respect to the witnesses. Accordingly, the Commission finds that substantial record evidence supports the AJ’s finding that Complainant was not subjected to discrimination or reprisal as alleged. 2019001973 6 Hostile Work Environment On appeal, Complainant contends that the AJ erred in finding that the incidents comprising her claim were neither severe nor pervasive enough to rise to the level of a hostile work environment. But to the extent that Complainant is alleging that she was subjected to discriminatory and retaliatory harassment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a 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 Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, 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. 2019001973 7 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. 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 August 4, 2020 Date