0120130820
03-20-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130820
Hearing No. 430-2012-00002X
Agency No. 2004-0659-2011101224
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 21, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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
During the period at issue, Complainant is a Registered Nurse and worked as a Nurse Manager of the Agency's Intensive Care Unit (ICU), at the Veterans Affairs Medical Center in Salisbury, North Carolina.
On April 5, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her in reprisal for prior EEO activity when:
a. she was assigned additional duties as the Charge Nurse for dialysis and telemetry monitoring and the trainer for newly hired technicians; and
b. effective December 20, 2010 and ongoing, the Executive Nurse failed to respond to Complainant's request for assistance to perform the additional duties.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On November 2, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. In June or July 2010, the Associate Chief Nurse ("the Supervisor") told Complainant about two programs that would be implemented. The Supervisor told Complainant that she would be assigned to supervise the dialysis program and that another named Nurse would be supervising the telemetry monitoring program.
Prior to the events at issue, Complainant had filed an earlier EEO complaint activity over a pay issue. The Report of Investigation contains a print-out from the Agency's complaint tracking system that shows that Complainant sought EEO counseling in June 2010 and filed a formal complaint on September 29, 2010 (Agency Complaint No. 2004-0659-2010103799).
On November 7, 2010, a little over a month after Complainant filed her prior EEO complaint described above, the Supervisor told Complainant that she would be supervising both the dialysis and telemetry monitoring program. The Supervisor also told Complainant that the dialysis program would be provided by a contractor. As for the telemetry program, the Supervisor told Complainant that she would supervise four telemetry technicians (three certified nursing assistants and one registered nurse), who would be working in the ICU. The telemetry technicians would be handling duties formerly performed by ICU nurses.
On November 15, 2010, Complainant began supervising the telemetry technicians. Complainant already supervised a staff of sixteen Registered Nurses (RNs) in the ICU. With the additional of four to five telemetry monitoring technicians, Complainant was responsible for a total staff of 20-21 employees.
However, the record establishes that, at the time the matter was before the AJ, the new dialysis program had not become operational. Therefore, when Complainant filed her EEO complaint and through the hearing process, she had not been required to perform any duties for the dialysis program. The AJ also noted that, once the dialysis program was initiated, Complainant would serve only as an onsite point of contact for the contracted service as it was anticipated to be a completely contracted service.
On November 12, 2010, the Supervisor and the Executive Nurse (Complainant's second level supervisor) met with Complainant to discuss Complainant's objections to supervising the telemetry program.
On December 1, 2010, Complainant received emails from one of the Telemetry Technicians and the union questioning the technician's job duties and responsibilities. Complainant met with the Executive Nurse and the Supervisor to discuss the emails. During the meeting, Complainant again requested that she be released from supervising the telemetry monitoring program. She indicated that she was finding the extra responsibilities too stressful. She was told that she needed to continue to supervisor the telemetry monitoring program.
On December 7, 2010, Complainant brought in a doctor's note stating that supervising both the dialysis and telemetry monitoring programs was adversely affecting her health. Complainant's doctor stated that Complainant's blood pressure had elevated while at work and that she had an anxiety attack. On December 8, 2010, the Executive Nurse called Complainant about the doctor's note. During the telephone conversation, the Executive Nurse stated that she would talk to the Supervisor. The AJ noted that on December 14, 2010, Complainant sent an email to the Executive Nurse asking for an update. The Executive Nurse responded saying that she had given the doctor's note to the Supervisor.
On December 15, 2010, the Supervisor met with Complainant and asked Complainant if she was requesting reasonable accommodation through submission of her doctor's note. The Supervisor gave Complainant a copy of the Agency's reasonable accommodation policy. Complainant stated that she would look at the policy, but that she was not requesting reasonable accommodation. Some days later, Complainant sent an email to the Supervisor stating that she had reviewed the reasonable accommodation policy and did not think it applied to her. Complainant again requested that she be removed from supervising the telemetry monitoring program because she determined that the assignment was adversely affecting her health. On December 20, 2012, the Supervisor responded to Complainant's email stating, "[i]t is not possible to change your responsibilities based on the exponential growth of the programs at our facility. Given constraints on staffing, it is necessary for leaders to accept added responsibility."
The record shows that out of the five Acute Care Nurse Managers at the facility, Complainant (with the addition of the telemetry program) supervised a total staff of 20-21, and the other four Nurse Managers supervised staffs of 24, 26, 31 and 55 respectively.
Based on these facts, the AJ found no discrimination. The AJ concluded that even if Complainant established a prima facie case of reprisal discrimination, the AJ articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
Complainant, on appeal, argues that the AJ erred in issuing a summary judgment because there are material facts at issue. Complainant argues "it makes no sense to deny a reprisal claim asserting that after a complaint was filed, the complaining employee was given additional and unrelated work as punishment for having complained. Such work was sufficient to change the Complainant's health and cause her considerable distress. Any disagreement with this is, at most, a factual determination to be made at hearing. This is particularly true when there is a reprisal claim because any sort of action designed to punish or deter an employee with protected activity is subject to particular scrutiny, including proposed actions."
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.
Upon a review of the record, we determine that Complainant has not established that the AJ erred in deciding this case without a hearing. In order 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 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.
On appeal, Complainant characterizes this as a "simple" case - Complainant filed a prior EEO complaint and received more duties. However, the evidence of record establishes that the responsible management officials articulated legitimate, non-retaliatory reasons for assigning Complainant the extra duties. Due to the "exponential growth" of programs at the medical center and staffing constraints, nurse managers were being assigned more duties. Complainant was assigned to supervise the telemetry monitoring program because the new telemetry technicians would be handling duties previously performed by ICU nurses, who Complainant already supervised. In addition, Complainant supervised fewer employees and had fewer patients in the ICU than the other Acute Care Nurse Managers.
With regard to the dialysis program, the record establishes that the dialysis room was across the hall from the ICU. The program had not been implemented at the time of the events at issue, so Complainant had no duties to perform. Moreover, the dialysis program would be run by a contractor and Complainant's role was to act as a point of contact for the contract dialysis nurse.
The burden of proof is on Complainant to prove, by a preponderance of the evidence, that the legitimate reasons proffered by management were really a pretext masking the true retaliatory motivations. Beyond the mere fact of her earlier EEO complaint, Complainant has not pointed to evidence she could produce at a hearing that would prove pretext. Significantly, it is undisputed that management asked Complainant if she was making a request for a reasonable accommodation when she submitted medical documentation of her stress, but she responded in the negative.
In sum, we find no basis to disturb the AJ's decision on the merits. The Agency's final order implementing the AJ's decision finding no discrimination 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.
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
March 20, 2015
__________________
Date
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0120130820
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130820
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