0120111002
03-13-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111002
Hearing No. 430-2008-00262X
Agency No. 200406582007102728
DECISION
On November 24, 2010, Complainant filed an appeal from the Agency's October 21, 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 (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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that she was discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (RN), Intensive Care Unit (ICU) at the Agency's Salem Veteran's Affairs Medical Center in Salem, Virginia. On July 3, 2007, Complainant filed an EEO complaint. She alleged that she was discriminated against:
1. because of her sex and disability (Attention-Deficit Hyperactivity Disorder or ADHD) when she was removed from her nursing duties and reassigned to a clerical position.
2. because of her sex and mental disability (ADHD) when on April 27, 2007, management pressured her co-workers to write statements about her, and she was threatened with termination.
3. because of her sex, mental disability (ADHD), and reprisal when:
a. On August 28, 2007, she was reassigned to the local union office to perform clerical duties;
b. On May 23, 2007, she was reassigned to the Alzheimer unit by the Nurse Executive (NE);
c. On August 24, 2007, she was informed that she was being rated as "unsatisfactory" in all areas of her 90-day performance review;
d. On August 28, 2007, management informed her that nothing would be placed in her file and she would be given a good reference if she would resign and be gone by October 1, 2007;
e. On July 27, 2007, the Nurse Manager informed her that she would not be allowed to write nursing notes;
f. During a meeting, management informed her that she was best suited for the Dementia/Alzheimer unit due to her learning disability;
g. On July 26, 2007, management made a negative comment to her co-workers stating "You do not know what is in her file," when asked why Complainant could not perform her duties as a registered nurse;
h. On July 26, 2007, management would not allow her to assess pain for a "Do Not Resuscitate" (DNR) patient as required;
i. On May 23, 2007, management made negative remarks (in the presence of a patient) when Complainant was told she was not a nurse and she could only perform certified nursing assistant duties; and
j. On October 8, 2007, she felt forced to resign her nursing position.
4. because of her sex, mental disability (ADHD) and reprisal on October 5, 2007, when she was subjected to continuous harassment/hostile work environment upon discovering that a negative performance memorandum, dated April 23, 2007, had been placed in her official personnel file.
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 March 6, 2009, motion for a decision without a hearing and issued a decision without a hearing on September 27, 2010.
The AJ found that Complainant was diagnosed with ADHD as a child. She explained that due to the ADHD, when not on medication, she is easily distracted and "I speak before I think." She testified that she is most challenged with her spelling and confidence with this disorder. She requested to use Microsoft work to type her notes and permitted to do so.
Complainant alleged that that the NE of the Intensive Care Unit where she was assigned reassigned her because of her dyslexia. She further alleges that all of the managers were aware of her learning disability.
In April 2007, Complainant charged her then supervisor (S1) with sexual harassment.1 As a result, Complainant alleges that on April 27, 2007, S1 pressured her co-workers to write negative statements about her, and she was threatened with termination. However, the AJ noted that Complainant failed to substantiate the allegation because she could only name an employee who was asked to write a statement about her. The record reflects that this employee declined to do so.
In addition, the AJ noted that numerous unsolicited written statements about Complainant's conduct were included in the electronic incident reporting system from other medical personnel. This alerted the Agency to Complainant making medical diagnoses, placing catheters in patients without orders, leaving the unit without notifying the charge nurse, arguing with doctors, and questioning medical orders in front of patients. Consequently, Complainant was scheduled to be assessed by the Summary Review Board.
While deciding whether to send Complainant to the Summary Review Board, the Agency followed its procedure of removing Complainant from patient care. On April 30, 2007, Complaint was transferred to the Health Administrative Service (HAS) to perform clerical duties.
Complainant asserted that on May 23, 2007, management made negative remarks in the presence of a patient when Complainant was told she was not a nurse and she could only perform certified nursing assistant duties. Further, on July 27, 2007, the Nurse Manager (NM) informed her that she would not be allowed to write nursing notes. The record showed that N1 did not recall the May 23, 2007 incident. Further, Complainant stated that was allowed to complete her notes in Microsoft Word since she had a problem spelling some of the words.
Complainant alleged that while assisting a patient on July 26, 2007, one of the other staff asked her why she was performing nurse assistant jobs if she was a RN. Later, the same individual asked management why Complainant was performing assistant jobs. According to Complaint, Nurse1 responded to the employee, "You do not know what is in her file."
The AJ found that it was undisputed that on July 26, 2007, management would not allow Complainant to assess pain for a Do Not Resuscitate (DNR) patient. Complainant believed it was "ethically wrong" to leave pain untreated.
The NE met with the Complainant and the Union regarding next steps. During this meeting, Complainant first mentioned that she had ADHD/dyslexia. Complainant, however, did not seek any type of accommodation.
Based on these meetings and after investigating the matter, NE reassigned Complainant to the Alzheimer's/Dementia Unit on May 23, 2007. She believed that Complainant would work better in a slower paced environment with closer supervision/assistance. She wanted Complainant to have an opportunity to work under her "best nurse" Nurse1 and to be "given a fair shake."
After a couple of months, Nurse1 was not pleased with Complainant's work process and initiated termination proceedings. She indicated that Complainant interfered with patient care by talking to a patient's family about alternative treatments despite the treatment ordered by the assigned physician. On August 24, 2007, Complainant was informed that she was being rated as "unsatisfactory" in all areas of her 90-day performance review. Termination procedures began based on Complainant's performance.
Before any action was taken, the Union intervened on Complainant's behalf. The Union representative told management that Complainant planned to resign and that she would be "off the [Agency] rolls in thirty days." He asked management to put the termination on hold and to reassign Complainant to the union office. NE agreed and Complainant was reassigned to the Union office.
On October 5, 2007, Complainant discovered that a negative performance memorandum, dated April 23, 2007, was placed in her official personnel file. On August 28, 2007, management informed her that nothing would be placed in her file, and she would be given a good reference if she would resign and be gone by October 1, 2007. On October 8, 2007, Complainant alleges that she felt forced to resign her nursing position. Complainant resigned effective October 8, 2008.
The AJ found that the Agency articulated legitimate, non-discriminatory reasons for its conduct. Specifically, the Agency asserted that Complainant's work performance was unsatisfactory. The Agency further stated that even after reassigning Complainant to the Dementia Unit, her work performance remained unsatisfactory. Complainant was reassigned to the Union office based on a request by the Union on behalf of Complainant and to which Complainant agreed. Finally, the Agency stated that Complainant was terminated during her probationary period due to her poor work performance. The AJ found that the evidence supported the Agency's contentions that Complainant was reassigned to a "slower" paced unit in order to help her succeed as a RN. Nurse Manager wanted to be sure Complainant received a fair chance to succeed and assigned her to "her best nurse." In addition, the AJ noted that assigning Complainant to the Dementia Ward was not an act of punishment but rather an attempt to find a work pace that suited Complainant's demonstrated performance concerns. The AJ found that Complainant's failed to establish that the Agency's proffered reasons were a pretext for discrimination.
With regard to Complainant's allegations of harassment, the AJ found Complainant failed to alleged facts that showed that the conduct directed toward her that was "because of her sex, disability and reprisal. The AJ found that Complainant perceived "any and all informative meetings regarding her work performance as threats." The AJ found that there was no evidence, aside from Complainant's oral assertions, that supported a finding of harassment. The AJ noted that Complainant asserted that she was threatened with termination numerous times but fails to indicate an actual threat of termination. Rather, the evidence supports that her managers merely discussed their proposed termination with her. The AJ noted that an example of Complainant's questionable work performance involved the DNR patient. Even after the situation was handled, Complainant continued to project her attitude towards pain management on DNR patients rather than the hospital policy.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she established that she was subjected to harassment. Further, Complainant argues the AJ erred in issuing a decision without a hearing. Specifically, Complainant argues that nothing in the record indicates that her performance was substandard. Further, Complainant asserts that she was not performing nursing duties during the 90 days that she was evaluated. Complainant further argues that the Agency failed to articulate legitimate, nondiscriminatory reasons for its actions. Complainant asserts that the issues with her performance clearly arose after she alleged she was sexually harassed and disputes that her performance was the reason.
In response, the Agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
The Commission has the discretion to review only the issue specifically raised in Complainant's appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November 9, 1999). As such, the Commission will only address the issues raised by Complainant in her appeal brief.
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also EEO MD-110 at Chapter 9, � VI.B. (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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"). We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record we find that no genuine issue of material fact exists. Although Complainant argues on appeal that there are genuine issues as to whether Complainant's performance was substandard, we find that the record adequately shows that the Associate Chief, Nursing Service (ACNS), testified that Complainant was interfering with the treatment of patients and with the physician's assistant. Complainant also had difficulty taking instruction from the charge nurse. As such, we find that the record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given an opportunity to respond to the motion, she was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. Therefore, we find the AJ's issuance of a decision without a hearing was appropriate.
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). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Here, we find that assuming arguendo that Complainant established a prima facie case of sex, disability, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as found by the AJ and stated above.
Because we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to show that the Agency's proffered reasons were a pretext for discrimination or reprisal. We find that Complainant failed to do so. Complainant failed to offer any evidence to show that the Agency's proffered reasons were not worthy of credence or were motivated by discriminatory or retaliatory reasons. Complainant argues that she did not perform the duties of a nurse during the 90 day assessment; however, Nurse1 testified that in the Dementia ward, nurses were required to provide more hands-on care. As such, even though Complainant perceived that she was not doing the work of a nurse, she was, in fact, doing so. To the extent that Complainant asserts that the issues with her performance arose after she alleged she was sexually harassed and disputes that her poor performance, we find Complainant failed to put forth sufficient evidence to support her assertions. On the contrary, the record contains sufficient testimony to show that Complainant was not performing her positions in a satisfactory manner.
With respect to Complainant's contention that she was subject to a hostile work environment we find that Complainant's claim must fail. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U. S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 order adopting the AJ's finding of no discrimination or harassment.
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.
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
__3/13/15________________
Date
1 The AJ noted that this incident is only included as background information and is not part of the complaint at issue.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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