Tressa L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 11, 2019

0120182837 (E.E.O.C. Oct. 11, 2019)

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

Tressa L.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120182837

Hearing No. 510-2015-00321X

Agency No. 20010573201100322

DECISION

On July 24, 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
June 25, 2018, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Utilization
Management Advisor, VN-2, at the Agency’s Medical Center facility in Gainesville, Florida.

On November 20, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability (back) when:

1. from June 5 to November 24, 2014, Complainant was been subjected to
harassment;

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.
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2. on or about July 3, 2014, the Chief Nurse removed Complainant from the position
of Acting Assistant Nurse Manager/Charge Nurse and replaced her with a less
experienced employee that Complainant had to train; and

3. on November 24, 2014, Complainant was not referred for the position of
Emergency Department Assistant Nurse Manager under vacancy announcement
number GS-14-MSF-1124780.

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). Complainant timely requested a hearing.

Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 1,
2015 motion for a decision without a hearing and issued a decision by summary judgment in
favor of the Agency on June 8, 2018. Specifically, the AJ found that management officials
articulated legitimate, nondiscriminatory reasons for the alleged actions and that Complainant
failed to establish that such articulated reasons were pretextual. The AJ further found that
Complainant failed to establish that any of the Agency’s actions were based on Complainant’s
disability. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

The instant appeal followed.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate.

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.
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While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed
to point with any specificity to particular evidence in the investigative file or other evidence of
record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Disparate Treatment.

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima
facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action.2 See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411
U.S. at 802. Next, in response, the agency must articulate a legitimate, non-discriminatory reason
for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at
802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that
the agency's action was based on prohibited considerations of discrimination, that is, its
articulated reason for its action was not its true reason but a sham or pretext for discrimination.
See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

This established order of analysis need not be followed in all cases. Where the agency has
articulated a legitimate, non-discriminatory 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 Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
Complainant established her prima facie case of discrimination.

We next find that Agency officials articulated legitimate non-discriminatory reasons for their
actions. With regard to the Chief Nurse allegedly removing Complainant from her position of
Acting Assistant Nurse Manager/Charge Nurse and replacing her with a less experienced
employee, the Chief Nurse averred that Complainant:

Never held the position of acting assistant nurse manager. [Complainant] was a
staff nurse in the emergency department [ED] and she was - - she served as a
point of contact sometimes and as a lead because she helped the nurse manager
fill out the daily schedule.

2 For purposes of this decision the Commission assumes without finding that Complainant is an
individual with a disability. 29 C.F.R. § 1630.2(g)(1).
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There was an employee that was selected to serve as the acting nurse manager on
June 3rd. This employee had a broader base of ED knowledge, and experience,
and experience in management; and she had previously worked in the VA ED for
several years, and she had 25 years of ED experience and nurse manager
experience.

With regard to Complainant not being referred for the position of Emergency Department
Assistant Nurse Manager, the Chief Nurse averred that “That is incorrect. [Complainant] was
referred on the cert, her name was on the cert, along with seven or eight other applicants.
[Complainant] was interviewed on 8/1/14.” The Chief Nurse further averred that, while
Complainant:

[D]id do quite well, she was up there in the top, but she wasn’t the top-most
candidate, the highest scoring candidate. . . . [The selectee] had 25 years of ED
experience and previous nurse manager experience. . . . [Complainant] did not
have previous supervisory experience or nurse manager experience. And she did
not have previous acute care experience, to the extent that the selectee did. She
had intermittently worked in the ED as a supplemental staff person, which doesn't
mean that you understand all of the emergency department acute care of patients,
you are given a small team and of patients that are less acute.

The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden
shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s
reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine;
McDonnell Douglas. Following a review of the record we find that Complainant has failed to
meet this burden.

With regard to the Chief Nurse allegedly removing Complainant from her position of Acting
Assistant Nurse Manager/Charge Nurse and replacing her with a less experienced employee,
Complainant agreed with the Chief Nurse’s contention that Complainant had never been the
acting assistant nurse manager, indicating that that portion of the claim was in error, and stating
that the claim “should have read, ‘charge nurse’ instead of ‘acting assistant nurse manager’
because there were no acting assistant nurse managers in this facility at that time.” We next note
that the primary care nurse (“PCN”, no claimed disability) who replaced Complainant as charge
nurse was also the selectee for the position of Emergency Department Assistant Nurse Manager,
and Complainant makes the same arguments against PCN replacing Complainant as charge nurse
as she makes against PCN being selected for the Assistant Nurse Manager position, namely that
PCN “had no training in the management of the emergency department at this VA medical
center.”

We note that where, as here, the alleged discriminatory action is non-selection, pretext may be
found where the complainant's qualifications are demonstrably superior to those of the selectee.
Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981).
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Otherwise, the Agency may choose among qualified candidates based on its discretion, provided
that the decision is not based upon unlawful criteria. See Burdine, at 259; Vanek v. Dep't of the
Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). It is not the function of this
Commission to substitute its judgment for that of management officials who are familiar with the
needs of their facility, and who are in a better position to make decisions, unless other facts
suggest that proscribed considerations of bias entered the decision-making process. See Shapiro
v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at
1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005)
(personnel decisions and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation).

Following a review of the qualifications of Complainant and PCN, we find that while the
credentials of both candidates are impressive, Complainant has not shown that her qualifications
are demonstrably superior to those of PCN. While Complainant had more experience working in
the emergency department “at this VA medical center,” PCN had more overall experience
working in emergency departments at other facilities. Management officials are entitled to decide
that such experience in other facilities was as valid, or more valid, than Complainant’s
experience at the facility in question. Complainant has therefore not shown that the Agency’s
articulated reasons for replacing Complainant in her position of charge nurse with PCN, and
subsequently selecting PCN for the position of Assistant Nurse Manager, were pretextual. Nor
has Complainant otherwise shown discrimination occurred.

Hostile Work Environment

We note initially that, to the extent Complainant is alleging that she was subjected to a hostile
work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993) any claim of hostile work environment may not include claims 2 & 3. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,
1994). A prima facie case of hostile work environment that includes such incidents is precluded
based on our finding that Complainant failed to establish that any of the actions taken by the
Agency with regard to those claims were motivated by discriminatory animus or retaliatory
motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September
21, 2000).

Complainant alleges the following incidents occurred: On June 5, 2014, the Chief Nurse advised
Complainant to apply for other positions because the staff did not respect Complainant and
viewed her as an extension of the previous Emergency Department Nurse Manager; on June 27,
2014, when Complainant asked the Primary Care Nurse Manager (“PCNM”) what she had done
wrong not to be offered the Acting Nurse Manager position, PCNM replied that Complainant
had done nothing wrong, but when Complainant asked PCNM whether Complainant needed to
find another job, PCNM replied “yes”; July 1, 2014, even though the Chief Nurse had just
shown Complainant a copy of her permanent work restrictions from the Department of Labor,
the Chief Nurse asked Complainant for an updated copy; on July 2, 2014, the Chief Nurse
instructed Complainant to train a Staff Nurse on preparing daily assignments; when Complainant
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returned from vacation on July 28, 2014, she discovered another nurse had moved into her office,
and her personal property had been placed in a cabinet; from July 29, 2014, through August 8,
2014, Complainant was assigned to work as a Triage Nurse; on July 29, 2014, Complainant was
moved to a desk in the corner without a telephone or a computer; and on August 11, 2014, the
Patient Care Service Associate Director asked Complainant for a current copy of her work
restrictions and informed Complainant that if she was selected for an assistant nurse manager
position she would also be assigned a team of patients.

In considering whether any of the above actions, whether individually or collectively, constitute
harassment, the Commission notes that in Harris, the Supreme Court reaffirmed the holding of
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is
sufficiently severe or pervasive that it results in an alteration of the conditions of the
complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a
complainant must show that: (1) she belongs to 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 statutorily protected class; (4) the harassment had
the purpose or effect of unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No.
01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, 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 her disability. Only if Complainant
establishes both of those elements – hostility and motive – will the question of Agency liability
present itself.

Following a review of the record we find that Complainant has not shown that any of the alleged
actions either involved or were based on her disability with the exception of the requests for
updated medical restrictions, which appear to have been reasonable requests. Nor do we find
such actions, whether considered individually or as a group, to be sufficiently severe and/or
pervasive to alter the conditions of Complainant’s employment. We therefore find that
Complainant has not proven discriminatory harassment occurred.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not met her burden of establishing,
by a preponderance of the evidence, that discrimination or harassment occurred. We therefore
AFFIRM the final order.

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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. 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.
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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

October 11, 2019
Date