Cassy W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 4, 2020

2020004565 (E.E.O.C. Nov. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cassy W.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004565 Hearing No. 480-2019-00261X Agency No. 200P-0691-2018102371 DECISION On August 13, 2020, 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 July 14, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, VN 3, at the Agency’s Greater Los Angeles VA Health Care System facility in Los Angeles, California. On May 23, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when, on February 7, 2018, she was informed that her previous selection for a position in Homeless Ambulatory Care Treatment (HPACT) was withdrawn. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s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. 2020004565 2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts. Regarding her alleged basis of reprisal, Complainant attested that she previously filed an EEO complaint of harassment and discrimination on December 21, 2017. However, the named responsible management officials in the instant case denied awareness of this prior complaint. Complainant attested that, on January 2, 2018, she was selected for an HPACT Registered Nurse (RN) position, but she could not report to HPACT until management released her from her current position. She attested that, on January 8, 2018, the Nurse Case Manager of Community Engagement Reintegration Services (CERS) requested Complainant’s sick leave records, which Complainant provided by email. Complainant further attested that, on February 7, 2018, a Human Resources Specialist notified her that the job offer was being rescinded, although she was not aware of the reason at the time. Complainant attested that management later cited poor attendance concerns surrounding her use of leave as the reasons for withdrawing the job offer, but Complainant had no history of discipline or counseling for abuse or misuse of leave. Complainant acknowledged using most of her earned sick leave during the previous year. However, she asserted it was not abused but was the result of her declining health resulting from working the midnight shift for ten years. The Nurse Care Manger attested that, on January 9, 2018, Complainant’s attendance records were requested and subsequently received. She explained that such a review is standard practice with nursing positions and typically done when a candidate is an existing Agency employee and is being considered for final selection. She explained that the attendance review was conducted to assist in determining if Complainant would officially be selected or the position. She explained that, as a relatively small clinic with a small group of nurses, staffing was an important consideration, as absences or calling off work directly impacts the flow of the work unit and patient care. She explained that if a nurse was absent, another nurse would be required to cover their caseload, which would place the burden of an increased workload on that nurse, which resulted in patients waiting longer for access to care. The Nurse Care Manager explained that, generally, a review is completed prior to any offer being made and it was unknown how or why Human Resources made the job offer prior to the attendance records being received and reviewed. She further explained that attendance records speak to a candidate’s work history and were a consideration in the selection process for the HPACT RN position. She attested that Complainant’s records showed a poor attendance record, as Complainant had a pattern of calling off work every month. She explained that there was a concern with unplanned absences, as management would not be able to schedule or plan around them. She explained that such use of unplanned leave was scrutinize because of the impact on patient care. The Acting Nurse Manager for HPACT explained that HPACT is a high-demand out-patient workplace, with patients constantly walking in and demanding services. She explained that when team members are not present, productivity and efficiency suffer; poor attendance negatively impacts morale as other staff have to cover additional tasks; and costs potentially would increase 2020004565 3 as more overtime would be required. She explained that, attendance was a critical consideration when dealing with primary care. The Acting Nurse Manager explained that there typically should be no more than three instances of sick leave per quarter and Complainant’s use of excessive amounts of annual and sick leave would impact the flow of the work unit. She also attested that there appeared to be a pattern of using leave on weekends and in conjunction with off-weekends. She attested that Complainant’s use of sick leave exceeded what was considered normal and was beyond what was typical of the HPACT team. She explained that the selected candidate would need to be able to meet the needs of the service and consistent attendance is a critical part of that ability. The HPACT Medical Director attested that she was the selecting official for the HPACT RN position at issue and, ultimately, was responsible for the decision to withdraw Complainant’s job offer. She explained that Complainant appeared qualified for the position and the initial selection was made prior to any review of Complainant’s attendance. She explained that the nursing selection team reviews attendance with any nursing selection. She attested that the decision to rescind the job offer was made by the panel, based on the concerns raised during the review of Complainant’s 2017 attendance record and the needs of the position. The HPACT Medical Director explained that, due to the HPACT nurses’ high-acuity presentations and highly complex care management responsibilities, consistent attendance is critical for providing daily reliable and intensive care management. She explained that HPACT cares for homeless veterans who are typically difficult to engage and have a difficult time keeping their appointments. She further explained that these veterans need to establish trust in their providers and to know that they will be there when needed. She explained that it is important to provide as much continuity of care as possible and building rapport with the veterans requires the ability to work on treatment plans and build relationships, both of which require consistent and reliable attendance. She also explained that the veterans have voiced frustration with the availability of employees and requested to switch care teams or simply stopped coming to the clinic. The Associate Director for Patient Care Services and Nurse Executive attested that managers are encouraged to request attendance records for the previous two years to help determine if a person is suitable for a position. He explained that Complainant’s attendance record was also the reason she was not selected for another position for which she previously applied. The Assistant Nurse Manger attested that Complainant’s attendance records for January 2017 through January 2018 showed no patterns of use or abuse; there were no absent without leave (AWOL) or unexcused tardy entries; and the leave did not appear excessive and was within the amount of accrued leave available to Complainant. He attested that Complainant used 104 hours of sick leave and 226 hours of annual leave, which exceeded the annual limit by 18 hours. He explained that, compared to Mental Health staff, Complainant’s use of leave was approximately in the 70th percentile. He attested that Complainant’s attendance reports reflected no conclusive evidence of leave patterns or abuse, she did not have attendance issued, and there were no documented prior instances of attendance concerns or problems. 2020004565 4 A Human Resources Specialist attested that she started to process Complainant for the position after she was initially selected, but the supervisor then requested the job offer be rescinded due to concerns with Complainant’s attendance. She explained that a review of attendance had been done with previous positions and typically would be part of the reference check and completed prior to selection. She explained that requesting additional information, such as attendance, may be done as part of the selecting official’s due diligence and supervisors have the discretion to determine whether they want to proceed to hire someone and attendance is a valid reason for not hiring a candidate if the supervisor believes they will not be present to complete their job duties. She also attested that management followed the proper process for withdrawing the job offer, which can be done at any point prior to the applicant starting the position. A letter dated February 22, 2018 from a Human Resources Officer to Complainant indicates that, while a tentative job offer for a Staff Nurse (Outpatient/HPACT) position with CERS had been extended to Complainant on January 2, 2018, Complainant was informed on February 7, 2018 that CERS requested that the job offer be rescinded due to poor attendance. A memorandum dated May 2, 2018 from the HPACT Medical Director provides a written explanation of the reasons for Complainant’s non-selection for the HPACT position at issue. It provides that, after a review of Complainant’s 2017 leave use, concerns arose about Complainant’s leave practices. It further provides that, due to the HPACT RNs’ high acuity and highly complex care management responsibilities, demonstration of reliable presence is crucial for establishing rapport, building panel management/triage skills, and providing the intensive care required to the vulnerable population served. It also provides that, due to a tight staffing model, carefully planned and consistent leave practices are crucial to provide high-quality, complex, and efficient care in our clinic. It also indicates that, for these reasons, Complainant was not selected and would not be selected as an HPACT RN at this time. The letter was signed by the HPACT Medical Director and CERS Director. 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 14, 2019, motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on July 14, 2020. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. On appeal, Complainant asserts her qualifications for the RN position at issue and reiterates her contentions that she was not selected in retaliation for her prior EEO activity. She also argues that summary judgment was not proper in the instant case. In response, the Agency argues that the AJ’s summary judgment was proper, as Complainant failed to establish a prima facie case of harassment based on reprisal. 2020004565 5 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. 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. Complainant has alleged that the Agency treated her disparately in not selecting her for the HPACT RN position at issue. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, her claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. 2020004565 6 The Agency explained that, while Complainant was initially chosen for the position and given a tentative offer, a subsequent review of her attendance records showed a history of unplanned absences exceeding what is typical of the HPACT nursing staff. The Agency explained that, given the HPACT RNs’ complex care management responsibilities, reliable attendance is crucial for establishing rapport, building panel management/triage skills, and providing the intensive care required to the vulnerable homeless veteran population served. The Agency also explained that, due to a tight staffing model, carefully planned and consistent leave practices are crucial to provide high-quality, complex, and efficient care in HPACT. We recognize that Complainant’s attendance may not have warranted disciplinary action or have been excessive in comparison to staff in other units. We also recognize that it was unfortunate that the selecting official did not make this determination prior to issuing Complainant a tentative offer. However, although Complainant has alleged that the Agency rescinded its offer of the position in retaliation for her prior EEO activity, she has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to this claim. 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. 2020004565 7 Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020004565 8 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 4, 2020 Date