Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 15, 2013

0120103471 (E.E.O.C. May. 15, 2013)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120103471

Hearing No. 540-2009-00158X

Agency No. 200P06782009100764

DECISION

On August 19, 2010, Complainant filed an appeal from the Agency’s July 16, 2010 final order
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791
et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621
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
at the Agency’s work facility in Tucson, Arizona. Complainant began her employment in
April 2000 and had been employed as a Licensed Practical Nurse until she became certified as
a Registered Nurse in 2007. Complainant was required to complete a two-year probationary
period as a Registered Nurse.

On January 8, 2009, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race/national origin (Hispanic), disability,
and age (51) when she was subjected to a hostile work environment as follows:

1. On October 23, 2008, the Clinical Nurse Manager of the Interim Care Unit and the
Clinical Director of the Community Living Center detailed her to Minimum Data
Set (MDS).

0120103471

2
2. On November 10, 2008, the Clinical Nurse Manager lowered Complainant’s rating
from “Competent” to “Novice” on her annual performance evaluation.

3. On December 2, 2008, Complainant declined management’s offer to reassign her as
a Licensed Practical Nurse effective December 8, 2008, thereby forcing her to
resign.

4. On December 15, 2008, a Supervisor and a union member instructed Complainant
to take sick leave until her resignation became effective January 2, 2009.

Complainant also alleged she was subjected to a hostile work environment resulting in
constructive discharge when:

a. On October 2, 2008, a coworker gave false information to the Clinical Nurse
Manager when she told her Complainant did not know the difference between
two types of catheters.

b. On October 8, 2008, the Clinical Nurse Manager scrutinized Complainant’s
work when she questioned whether Complainant administered the correct
amount of medication.

c. On October 23, 2008, the Clinical Nurse Manager accused Complainant of
making medication errors on October 20, 2008.

d. On November 18, 2008, Complainant was informed by two union members that
management planned to demote her from a Registered Nurse position to a
Licensed Practical Nurse position.

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. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for summary judgment
and issued a decision on June 30, 2010.

The AJ found that no discrimination occurred. The AJ noted that Complainant was placed on
a Performance Improvement Plan from April 24, 2008 through June 24, 2008. On May 1,
2008, Complainant received a memorandum from a Supervisor concerning her deficient
performance. The memorandum stated that several incidents had led management to question
her technical abilities, judgment and prioritization skills. Complainant was informed that
failure to improve her performance to fully successful would result in a request to the
Professional Standards Board to provide a summary review and determine if her professional
qualifications, as demonstrated by performance, warranted permanent appointment.

0120103471

3
The Supervisor issued Complainant a proficiency report for the period of October 1, 2008
through October 14, 2008. The report indicated that staff who worked with Complainant had
raised serious concerns about her patient care. Complainant was cited for deficiencies in
quality and content of change of shift reporting, skills in working in a team environment,
collaboration in the delivery of patient care, ability to effectively evaluate, assess, plan and
implement care for patients, especially during critical crisis episodes, poor time management,
poor organizational skills, poor leadership abilities and a failure to develop effective
interpersonal relationships with staff. Complainant was recommended for a formal summary
review to determine if she was fully qualified and satisfactory for continued federal service.
Complainant was subsequently downgraded from “Competent” to “Novice” based on these
performance issues. On October 23, 2008, Complainant was notified of her transfer to the
Minimum Data Set, a position that is administrative and does not involve direct patient care.

On November 18, 2008, Complainant learned that the Agency would proceed with a summary
review to examine her competence and fitness for continued service as a Registered Nurse with
the Agency. The AJ noted that Complainant was offered the option of accepting a Licensed
Practical Nurse position rather than going to the review board. On December 2, 2008,
management agreed to Complainant’s union representative’s request that Complainant be
permitted to resign with 30 days notice and remain in her position in MDS until her resignation
date. Complainant subsequently decided to utilize her sick leave after speaking to coworkers
and her union representative.

The AJ found that Complainant failed to establish a prima facie case of discrimination under
the alleged bases. The AJ noted that Complainant’s only comparison was an employee hired in
MDS in December 2008. According to the AJ, this individual was not similarly situated to
Complainant as she did not have a similar history of corrective action or difficulties with
patients. Based upon the aforementioned reasons, the AJ found that the articulated legitimate,
non-discriminatory reasons for its actions. The AJ noted that other individuals have been
removed from patient care when patient safety was an issue. The AJ further noted that the
Agency provided Complainant with training and guidance but determined that her performance
did not improve.

The AJ found that Complainant failed to establish that the Agency’s explanation for its actions
was pretext intended to hide discriminatory motivation. With respect to the constructive
discharge claim, the AJ stated that Complainant failed to refute any of the legitimate actions
taken by management. The AJ noted that Complainant claimed that members of the union and
coworkers, not management, discussed resignation with her. The AJ found that Complainant
failed to demonstrate that her work conditions were so intolerable that her subsequent
resignation was involuntary. 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.

0120103471

4
CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency offered her a demotion to the position of
Licensed Practical Nurse in an attempt to force her to resign. According to Complainant, the
Clinical Nurse Manager pursued an effort to justify lowering her performance rating and
discrediting her reputation. Complainant argues that she was pressured to resign by
management, Human Resources and her union representatives. Complainant states that an
MDS Supervisor and a coworker urged her to utilize sick leave rather than completing her final
month in MDS so that an employee about to be hired in MDS could begin work there.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a summary judgment decision when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

The Agency stated that Complainant’s reassignment to MDS and her lowered performance
evaluation were the result of deficiencies in her patient care. According to the Agency,
concerns were raised regarding Complainant’s ability in terms of evaluation, assessment,
planning and implementation of care for patients, time management, organizational skills,
leadership ability and her failure to develop effective interpersonal relationships with staff.
The Agency stated that Complainant was offered a Licensed Practical Nurse position in lieu of
going to the review board for a determination of her competence and fitness for continued
service as a Registered Nurse with the Agency. In terms of issues raised about medication
errors and other mistakes by Complainant, the Agency noted that several incidents had led
management to question Complainant’s technical abilities and judgment. We find that the
Agency has articulated legitimate, nondiscriminatory reasons for the matters at issue.

Upon review, we find that Complainant has not presented sufficient evidence to refute the
Agency’s explanation for her detail to MDS, her lowered performance rating, or the offer of a
Licensed Practical Nurse position. We also discern no evidence of discriminatory intent in the
discussion of whether Complainant should take sick leave prior to her resignation. With
respect to the constructive discharge claim, the record does not support the conclusion that
Complainant was subjected to intolerable working conditions. Based on the evidence,
Complainant’s resignation cannot be attributed to harassment or any form of discriminatory
treatment.

CONCLUSION

The Agency’s determination in its final order that no discrimination occurred is AFFIRMED.

0120103471

5

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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
0120103471

6
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

May 15, 2013
Date