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

Equal Employment Opportunity Commission

Feb 7, 2013

0120112443 (E.E.O.C. Feb. 7, 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. 0120112443

Agency No. 200I-0509-2010102089

DECISION

On March 28, 2011, Complainant filed an appeal from the Agency’s March 15, 2011, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse II,
Step 5, at the VA Medical Center in Augusta, Georgia. During the relevant time, Complainant
was assigned to the Spinal Cord Injury Unit (SCIU). Complainant’s first-level supervisor was
Person A, Nurse Manager, Nurse III, SCIU, Unit 1H.

The record shows that on September 25, 2009, a Registered Nurse (RN1), reported a patient
complaint to Person A. Person A reported the matter to the VA Police and completed a Police
Report on September 25, 2009. On October 8, 2009, the Associate Nurse Executive (Person
B), and the Service Line Executive (Doctor X), co-authored a memorandum that they sent to
Employee Relations. The memorandum requested assistance with Complainant’s removal due
to disrespectful conduct and patient abuse. The memorandum also noted that Complainant had
entered inappropriate notes into a patient’s record when he was not assigned direct care of that
patient. On October 8, 2009, Complainant was placed on Authorized Absence from October
9, 2009, through October 12, 2009, due to the allegations of patient abuse. Additionally,
Complainant was temporarily reassigned to the Sterile Processing and Distribution Department
effective October 13, 2009, pending the outcome of the investigation.

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On January 13, 2010, Doctor X issued Complainant a proposed removal memorandum with six
charges: patient abuse; disrespectful conduct toward a patient; violation of Patient Rights
Policy; inappropriate conduct; entering inappropriate notes in the Computerized Patient
Records System (CPRS); and, failure to follow supervisory instructions. On March 5, 2010,
the Medical Center Director (Person D) issued Complainant notification that the proposed
removal was mitigated to a five-day suspension, effective March 22, 2010, through March 26,
2010. Complainant was reassigned to the Emergency Room and returned to duty, effective
March 27, 2010.

Complainant filed an EEO complaint dated April 13, 2010, alleging that the Agency
discriminated against him on the bases of race (Caucasian) and sex (male) when:

1. Complainant was treated disparately on March 5, 2010, when he was
reassigned to the Emergency Room.

2. Complainant was treated disparately on March 5, 2010, when he was
advised by memorandum dated March 2, 2010, that a proposal to remove
him from employment was mitigated to a five-day suspension, effective
March 22, 2010 through March 26, 2010.

3. Complainant was treated disparately on October 8, 2009, when he was
detailed to the Sterile Processing Section; which resulted in the lack of
opportunity for weekend pay differential and to work overtime.

On June 7, 2010, the Agency accepted issues (1) and (2) for processing. The Agency
dismissed issue (3) pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor
contact.

At the conclusion of the investigation on the accepted issues, the Agency provided
Complainant with a copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected him to discrimination as
alleged.

On appeal, Complainant notes there was an Office of Inspector General (OIG) investigation
that found a patient went without a call light for an entire weekend and no disciplinary action
was taken against the female minority nurses involved. Complainant also notes that the
Agency admitted that they knew about abuse allegations against Registered Nurse 2 (RN2) by
February 2010; however, the Agency failed to act on any of these allegations. Complainant
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claims the Agency failed to take disciplinary actions against RN2 because she was a female
minority.1

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. (November 9, 1999) (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”).

At the outset, we note that on appeal Complainant does not challenge the Agency's dismissal of
issue (3). The Commission has the discretion to review only those issues specifically raised in
an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
9-10 (November 9, 1999). Accordingly, we will not address the dismissal of issue (3) in this
decision.

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 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

In the present case, the Agency has articulated legitimate, non-discriminatory reasons for its
actions. With regard to the proposed removal, Person A stated that she conducted an
investigation on September 25, 2009, regarding a complaint of patient abuse against

1 We note that Complainant also submitted a brief in May 2011, which was untimely filed.
Thus, we will not consider Complainant’s brief in the present appeal. Even if we considered
this May 2011 brief, it would not change our ultimate finding of no discrimination.
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Complainant. Person A stated that a patient alleged that Complainant mocked him; placed his
bed on rotation therapy after he had asked Complainant not to; and, the patient complained that
Complainant told him he was over utilizing the call light and moved it away from him. Person
A stated that the results of her investigation concluded that Complainant had engaged in patient
abuse; disrespectful conduct towards the patient, violations of the Patient’s Rights Policy;
inappropriate conduct; entering inappropriate notes into the CPRS; and failure to follow
supervisory instructions. Person A stated she had input into the decision to remove
Complainant, but she was not the decision maker. In his affidavit, Doctor X stated he made
the decision to issue Complainant a proposed removal based on the findings of the
investigation.

Person D stated that instead of removing Complainant, she decided to reassign Complainant to
the Emergency Room based on the recommendation from the Acting Associate Medical Center
Director (Person E) who believed Complainant could be “salvaged.” Person D stated that she
reassigned Complainant because the charge of patient abuse was sustained and Complainant’s
supervisor had lost confidence in his ability to work independently with spinal cord patients.
Person D explained Complainant was assigned to a work area where there was greater
supervision. Person D noted that the mitigation of the suspension and the reassignment was
based on Complainant’s years of service, work history, and the recommendation of the Acting
Associate Director.

In an attempt to prove pretext, Complainant contends that there was an OIG investigation that
found a patient went without a call light for an entire weekend and no disciplinary action was
taken against the female minority nurses involved. The record confirms that on one occasion
during the last week of October 2009, there was an incident in the SCIU on a busy Friday
night when an old room was opened and a patient was placed in the room, but the call light
system was not working. As a result the patient had to yell out or telephone out for help. The
record reveals that the incident occurred in Unit 1GE. Person A stated that she was not the
supervisor for 1GE during the time this incident occurred.

With regard to Complainant’s contention that RN2 abused a patient but was not disciplined,
Person A stated that there was no disciplinary action taken against RN2 because she was not
mentioned in the complaint from the patient. Person A noted that the patient named
Complainant by name. Person A also stated that she did not find out that the patient had
complained about RN2 until the patient had already been transferred to another unit.

We do not find the situations of patient abuse or misconduct raised by Complainant regarding
other employees to be comparable to the conduct for which the Agency believed Complainant
engaged in. We find the Agency articulated legitimate, non-discriminatory reasons for its
actions. Complainant failed to show by a preponderance of evidence that the Agency’s actions
were a pretext for prohibited discrimination.
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CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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
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 (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

February 7, 2013
Date