Archie G.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 6, 2017
0120152405 (E.E.O.C. Dec. 6, 2017)

0120152405

12-06-2017

Archie G.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Archie G.,1

Complainant,

v.

Dr. David J. Shulkin,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120152405

Agency No. 200P06052014101016

DECISION

On July 2, 2015, 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 4, 2015 final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

BACKGROUND

Introduction

On July 5, 2011, the Agency hired Complainant as a Registered Nurse (RN) in the Intensive Care Unit (ICU) at an Agency Medical Center in Loma Linda, California. Complainant held an Associate's Degree in Nursing as of 2010 and had less than one year of experience. The Agency hired Complainant at Nurse 1, Level 1, Step 1.

On March 27, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), disability (anxiety and post-traumatic stress disorder), and reprisal for prior protected EEO activity. Complainant alleged that the Agency treated him disparately and subjected him to hostile work environment harassment when:

1. on a continuous basis since his hire on July 5, 2011, the Agency failed to compensate Complainant correctly;

2. on March 28, 2013, Complainant's supervisor (S1) refused to process Complainant's requested boarding by the Nursing Professional Standards Board after Complainant received his Bachelor of Science degree in Nursing;

3. on a continuous basis since April 1, 2013, S1 ignored Complainant because he requested reasonable accommodation;

4. on April 22, 2013, S1 refused to implement Complainant's accommodation for an adjusted work schedule, which was approved on April 10, 2013,

5. in June 2013, S1 failed to recognize Complainant for his contributions and excellent performance during a Joint Commission visit in January 2013 although S1 recognized other employees for their efforts during the same visit;

6. in June 2013, S1 failed to issue Complainant a proficiency evaluation;

7. in Summer 2013, Complainant learned that S1 submitted negative information to the Agency's Human Resources Management Service (HRMS) alleging Complainant was a dangerous nurse who provided substandard care;

8. on August 19, 2013, S1 questioned Complainant about whether his new accommodation request to change his work schedule was for medical appointments or to attend school;

9. on September 18, 2013, S1 asked Complainant whether he wanted to withdraw his request for reasonable accommodation;

10. on continuous basis since November 10, 2013, S1 retaliated against Complainant by giving him difficult patient assignments and denying him assistance when he requested it;

11. from June 2013 to December 2013, S1 refused to recommend Complainant for retention and would not meet with him to discuss his performance evaluation;

12. on December 16, 2013, Complainant received a "Satisfactory" rating with unfounded negative comments on his proficiency report despite being rated previously as Excellent or Outstanding;

13. on December 16, 2013, S1 declined to provide specific details about the unfounded and negative comments written on Complainant's proficiency report, and S1 became very hostile, loud, disrespectful and demeaning after he questioned her about the rating;

14. on January 3, 2014, someone fallaciously reported that Complainant was wearing a surveillance product, Google Glass, to record patients;

15. on a continuous basis, S1 ignored approximately 40 patient commendations submitted by veterans about Complainant;

16. after Complainant spoke with S1 about missing several medical appointments, S1 told Complainant that if he was not happy he "should go back on night shift;"

17. on March 18, 2014, the Associate Director of Inpatient Care and Acting Nurse Manager and the ICU Assistant Nurse Manager accused Complainant of failing to administer medication to a patient;

18. on April 24, 2014, a fellow RN was belligerent and condescending to Complainant and cursed him during a conversation;

19. in mid-May 2014, Complainant learned that three female coworkers conspired to fabricate false details about him and included medical information in their write-up about him to the state Board of Registered Nursing;

20. on August 4, 2014, the Agency retaliated against Complainant by subjecting him to a urinalysis drug test; and

21. on August 18, 2014, the Acting Nurse Manager harassed Complainant by forcing him to complete a form 0857 (request for reasonable accommodation) instead of allowing him to use a self-scheduling form, which is normally used to schedule leave.

Investigation

Ultimately, for investigation, the Agency accepted Complainant's claim of harassment and incidents (1), (4) and (12) as discrete acts. Pursuant to 29 C.F.R. � 1614.107(a)(2), the Agency dismissed incident (6) for untimely EEO contact. The Agency accepted all alleged incidents as support for Complainant's harassment claim.

Complainant's Statement

During the investigation, Complainant stated, without proper treatment, his conditions (anxiety and post-traumatic stress disorder) cause a decrease in cognitive ability, slower reflexes, lesser mobile functioning, and withdrawal. Complainant stated that nurses are supposed to be paid based on education and experience, and that female and Asian nurses are paid more at his facility. He stated that he is still paid as an associate degree level nurse. Complainant stated that a reasonable accommodation committee approved his requested accommodation (schedule change), but S1 would not allow him to work it. Complainant stated that he needed a set schedule to make doctors' appointments.

Agency's Statement

During the Agency investigation, for (1), (4), and (12), the Agency provided the information that follows.

Claim 1: S1 stated that hiring a new nurse ("boarding") is performed by the Nursing Professional Standards Board (NPSB) that functions under the Deputy Under Secretary for Health for that purpose. S1 stated that supervisors do not have a say in the NPSB process. S1 stated that each year the Agency observes hired nurses and rates them annually for promotion. She stated that the Agency appointed Complainant at a very low level because he was a new graduate with very little experience and no bachelor's degree at the time. Complainant went through a one-week orientation with Human Resources and worked with a preceptor until he could work on his own. S1 stated there are resource nurses and charge nurses on the unit for clinical expertise, and the charge nurses felt that Complainant attempted to embellish his experience and abilities. They also felt that Complainant spoke in a harsh tone.

Claim 4: Complainant's request for a schedule change was not denied, it was approved as effective the schedule starting April 21, 2013. S1 stated that Complainant provided six schedule options to accommodate him and she found that they could accommodate him on the nightshift better than on the dayshift. She noted that she moved Complainant previously to the dayshift based on a Family and Medical Leave Act (FMLA) request from him to assist his ill father. S1 noted further that she did not have the flexibility she had when Complainant was first hired because ICU lost about 30% of its nursing staff over a two-year period. Also, S1 stated that there is a collective bargaining agreement in place that requires her to give six-weeks' notice to nurses whose schedules would change, so she asked Human Resources to rush approval of Complainant's accommodation schedule. S1 had to await approval to alert impacted nurses.

Claim 12: S1 stated that NPSB determines promotion of nurses, but supervisors conduct nursing proficiency ratings. S1 stated that Complainant's rating went down as it was his second proficiency and he was at a higher level in his position. She stated the Agency uses a novice to expert level model of skill acquisition. She added that she was unable to meet with Complainant to discuss his proficiency due to a scheduling conflict. She stated that Complainant demanded a meeting so a new Assistant Nurse Manager (S2) met with him and went over the rating components. Complainant was not happy with his rating.

Agency management denied subjecting Complainant to a hostile work environment. Generally, S1 stated that some staff felt that Complainant embellished his experience and abilities, and spoke in a harsh tone. S1 stated she explained that Complainant is a veteran and sometimes the transition between working in a military environment and a civilian environment can be challenging. Also, S1 stated that she knew Complainant was dealing with some challenges so she encouraged him to take leave if he did not feel up to working so as not to place himself and others at risk.

S1 stated that Complainant completed his Bachelor's Degree and demanded to have a proficiency completed before the annual due date. She stated that more than education went into the proficiency. S1 stated that she did not intentionally ignore Complainant and she has an open-door policy. S1 stated that there were no specific awards given for the Joint Commission visit, but she did forward an email from the Chief Nurse thanking everyone who participated. S1 stated that some nurses complained that Complainant offered them his anti-anxiety medication when they were expecting the Joint Commission visit, but she is unsure if he was joking or serious. Also, she stated that Complainant mentioned his spouse grew medical marijuana and he offered it to other nurses. S1 stated that she had eight write-ups about Complainant not giving medications, leaving medications in patient rooms, and needles laying around. S1 stated that other staff and patients' families noticed Complainant acting a little different in the clinical area. She was aware that he was under stress regarding the health of his dad and sister, but she had an obligation to report Complainant's behavior to the nursing chain of command and Human Resources.

S1 stated that Complainant was accepted into an academic nursing program and inquired about changing his schedule so she informed him that she no longer had the authority to make that change because he had an active reasonable accommodation schedule change. Complainant would have to inquire with the Chief Executive who approved his reasonable accommodation request. S1 stated that the charge nurses generally made up the daily nursing assignments, and they attempted to have continuity of care for the same patient. They attempted to have the same staff attend to the same patient for as many days in a row as possible because the staff is aware of the backstory and had knowledge of ailments and treatments. The charge nurse would need to be notified if there is a problem with a patient assignment.

S1 stated that she always had a union representative or witness present when she met with Complainant because nursing management suggested she not meet with Complainant alone. S1 stated that there is no formal retention request process and everyone is retained unless something terrible occurs. S1 stated that when a nurse is promoted there are new skills that they must be able to perform and there were some concerns with Complainant. Also, S1 stated that she received two commendations for Complainant, but she also received concerns from a family who no longer wanted Complainant to care for their relative and was concerned that he knew where they lived and how to contact them.

The Assistant Nurse Manager, S2, stated that management conducted a fact-finding when a coworker accused Complainant of failing to give medication and they located two medication bags with the same bar code as the ones he scanned as administered. S2 stated that Complainant was not reprimanded for the matter. S2 stated that Complainant and a nurse coworker (C1) had a "feuding relationship" and management tried to resolve it so the two could work together professionally. S2 stated that C1 wrote a complaint about Complainant to the state Board of Nursing citing S2 as his supervisor, but S2 did not complain to the Board. S2 stated that Human Resources randomly requests drug tests on employees, and some employees have been tested several times while others have never been tested. Several other employees were also tested. Human Resources stated that the urinalysis request came from headquarters.

Subsequently, Complainant amended his claim to allege discrimination when (allegation 22) the Agency Employee Relations Chief and the Agency Regional Counsel created an alleged conflict of interest by representing the Agency during mediation proceedings, and (allegation 23) in August 2014, the Agency denied Complainant official time. The Agency dismissed incidents (22) and (23) for failure to state a claim.

Post Investigation

Following 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) or an immediate final agency decision. Complainant requested a final agency decision.

The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency reinstated (allegation 23), regarding official time, in its final agency decision. The Agency found that the eight hours of official time the Agency granted Complainant on July 27, 2014, to prepare for the investigation was a reasonable amount of time. Also, the decision concluded that Complainant failed to prove that the Agency subjected him to any discrimination as alleged. The instant appeal from Complainant 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 & Disparate Treatment

To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).

Here, we find that Complainant failed to establish a claim of actionable harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on his protected classes (race, sex, disability or reprisal). The Agency stated that it hired Complainant as a new graduate with little experience and no bachelor's degree at the time. Once Complainant earned his bachelor's degree, he wanted to move up immediately but that was not how the Agency handled promotions in the past. Also, once promoted, Complainant was held to a higher standard of skill evaluation. There were some concerns about Complainant embellishing his experience and abilities and the harsh tone in which he spoke in the workplace. The Agency stated that it tried to work with Complainant and encourage him to take leave as he needed. The Agency stated that no one was given an award for the Joint Commission visit but participants were thanked for their efforts. Other staff alleged that Complainant offered them prescription medication and medical marijuana in the workplace. S1 stated that there were other concerns about Complainant's performance in the workplace by peers and families of veterans. The Agency stated that Complainant requested a schedule change under FMLA, reasonable accommodation, and then due to an academic nursing program he was in. The Agency stated that once it approved his reasonable accommodation schedule change, it had to consider that approval when considering the school-related change request. The Agency stated that when there were concerns regarding Complainant, they conducted fact-finding inquiries or tried to address by meeting with staff and/or Complainant.

We conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

Further, to the extent that Complainant alleged disparate treatment regarding his wages and performance evaluation, even if we assume that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. The Agency stated that Complainant was a new graduate and there were some concerns about his claims about his experience and skill level. Further, the Agency stated that Complainant wanted his proficiency changed as soon as he received his bachelor's degree but that was well before the next proficiency was due. Further, the Agency stated that once it promoted Complainant its expectations for his skills changed and his performance appraisal reflects how he performed based on the new expectations. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes.

Reasonable Accommodation

Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p). As a threshold matter, Complainant must establish that he is an "individual with a disability." Assuming, without finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency failed to reasonably accommodate him when it approved his request of schedule change effective April 21, 2013 after considering the six scheduling options he provided. Based on the above, we find that Complainant has not shown that the Agency failed to reasonably accommodate his alleged disabilities.

CONCLUSION

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

December 6, 2017

__________________

Date

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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