0120102595
09-23-2010
Consolata Oronsaye, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Consolata Oronsaye,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102595
Agency No. 200405802009102284
DECISION
On June 1, 2010, Complainant filed an appeal from the Agency's April 8, 2010, final decision 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. The Commission deems the appeal timely and accepts it for de novo review, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant met her burden of proving unlawful discrimination or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a probationary Registered Nurse, Grade II, in Nursing Service at the Michael E. DeBakey Medical Center in Houston. Texas. On July 1, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her, and harassed her, on the bases of national origin (Nigerian) and sex (female) when:
(1) from May 2007 - May 2008, the Nurse Manager (NM) (African-American female), refused to perform Complainant's quarterly evaluation, but completed evaluations for her co-workers;
(2) from October 2007 - May 2008, NM incessantly made comments regarding Complainant's body, body build, backside, gait and clothes which encouraged co-workers to make jokes about Complainant;
(3) from October 2007 - May 2008, NM selectively persecuted Complainant by encouraging and allowing reports of contact against Complainant that contained false allegations about patient care issues, while disregarding accurate reports written about Complainant's coworkers;
(4) from May 2007 - May 2008, NM constantly demeaned and undermined Complainant in the presence of her peers and patients by reprimanding her for the slightest issues, shouting at her and telling her to be quiet;
(5) NM discounted Complainant's contributions to patient care and unit efficiency and gave credit that was due to her, to others, never acknowledging Complainant;
(6) from December 2008 - April 2009, Complainant was required to appear before the Nurse Professional Standards Board (NPSB) due to false and unsubstantiated allegations of patient abuse and neglect (occurring on December 7, 2008); and
(7) on April 3, 2009, her employment as a Staff Nurse was terminated.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Final Agency Decision (FAD)
The FAD assumed for purposes of the analysis, that each of the events cited in the claims portion of this decision occurred as alleged by Complainant, despite evidence explaining those events by management officials. The FAD concluded that Complainant failed to show that the alleged harassment was sufficiently severe or pervasive. The Agency also found that Complainant failed to present any concrete evidence of unwelcome personal slurs or other denigrating or insulting verbal or physical conduct directed at her personally based on her protected status. The FAD concluded that Complainant failed to establish a claim of harassment based on sex and national origin.
The FAD then addressed, under a disparate treatment framework issues (6) and (7), which the FAD found were discrete acts that were timely brought to the attention of an EEO counselor. The FAD noted that Complainant alleged that from December 2008 through April 2009, she was required to appear before the NPSB due to false and unsubstantiated allegations of patient abuse and neglect, and on April 3, 2009.1 She also asserted that she was terminated from her Staff Nurse position during her probationary period.
The FAD found that Complainant testified that she was a probationary Staff Nurse and on December 7, 2008, she agreed to watch, one-on-one, a suicidal patient. She was supposed to stay within arm's length of that patient at all times, however, she stated that after she escorted that patient to her room and was within arm's length, a psychotic male patient entered the room. Having no real choice, she left the side of the suicidal patient and cajoled the male patient to leave. Unbeknownst to her at that time, while she was occupied with the male patient, the suicidal patient removed Complainant's cell phone charger from her purse. When she arrived at home, she received a phone call from the facility asking about her phone charger and that was when she first learned that the female patient had taken her phone charger from her purse. She also learned that the patient had a mark on her wrist. In a later conversation, Complainant learned that the suicidal patient had obtained other items from other locations, including: metal plates that she pulled from the wall; wires that she pulled from the drywall; and screws and other sharp items. Complainant stated that the patient could have used any of these other items to make the mark found on her wrist. On December 19, 2008, she was charged with failing to provide a safe environment for a patient on December 7, 2008, by failing to closely monitor that patient and by allowing that patient to remove a cell phone charger from her purse.
The FAD further noted Complainant's claim that during the NPSB, NM was hostile towards her, and pursuant to a Board action document, dated March 17, 2009, the NPSB recommended her termination for verbal abuse of a patient, neglect of a patient and failure to follow policy, relating to the December 7, 2008 incident; and, she was terminated from her probationary employment, effective April 3, 2009.
The FAD noted that when asked why she believed she was treated differently, based on her sex and national origin, Complainant stated that NM did not like her and had targeted her from the beginning of her employment to be fired. While Complainant stated that NM had made prior negative comments about her backside, stating her clothes were "too tight across her butt," Complainant also testified that she did not hear anyone make any comments about her race and national origin.
The FAD then found that Complainant failed to establish that similarly situated employees were treated more favorably. She also failed to establish a causal nexus between management's adverse conduct and her race and national origin. The FAD found no prima facie case of discrimination based on sex or national origin.
The FAD further found that NM, another Nurse Manager, the Care Line Executive for Geriatrics and Extended Care, and the Chair of the NPSB, all testified as follows: (1) pursuant to allegations of misconduct relating to Complainant's abuse and neglect of a patient under her care, management convened the NPSB; (2) the board reviewed an incident where, on December 7, 2008, a mental health patient under suicide watch by Complainant was able to retrieve a cell phone charger from Complainant's purse. The patient subsequently tried to commit suicide as evidenced by a mark on her wrist; (3) on December 11, 2008, Complainant confronted and verbally abused that same suicidal patient. The patient became so agitated that she had to be sedated. The treating physician also had to be called; (4) the final recommendation of the board was to terminate Complainant for verbal abuse of a patient, neglect of a patient and failure to follow Mental Health Care Line Precaution Policy, which allowed a patient to gain access to items to cause self-harm.
The FAD found that management denied discriminating against Complainant based on her sex and national origin. Accordingly, the FAD found that management met its burden to articulate legitimate, nondiscriminatory reasons for its conduct toward Complainant. The FAD noted that in order to prevail, Complainant must prove that these explanations were a pretext to mask prohibited discriminatory animus toward her.
The FAD noted that while Complainant has argued that she was treated differently based on her sex and national origin, the evidence of record supports a finding that she was deficient in her nursing duties as articulated by management officials that included negligent performance of duty that placed a veteran patient at risk of harm. Complainant also admitted that she has never heard anyone make any derogatory comments about her sex and national origin. The FAD found no persuasive evidence in the record to suggest pretext by management, and found that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the NPSB failed to conduct an impartial review of the accusations made against her, and failed to notify her of the results of the review. Complainant also notes that that no sworn testimony or written statement from a particular Medical Support Assistant (MSA) (American female) was provided to her or included in the investigative file given to Complainant despite the fact that she gave MSA's name to the investigator as a witness. Complainant claims that MSA would corroborate Complainant's claim of harassment. She also notes that the Human Resources Specialist (HR) (African-American female), was also not deposed by the investigator despite playing a "pivotal role" in what occurred.2
Complainant further maintained that she was treated differently than other employees who cared for the patients on one on one monitoring and were subsequently accused of not adequately watching the patients. She also asserts that she was never provided certain items she requested, to include a copy of video surveillance recordings on the date in question. She also states that in this instance, the Nurse Executive improperly performed the fact finding exercise which policy specifically reserved as the duty of a NM.
In response, the Agency maintains that the record in this case does not support any contention that the Agency took any action against Complainant, to include terminating her position, because of her sex or national origin. The Agency asks the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
First, we find that the investigative file contains sufficient information upon which to determine whether or not the complained-of Agency actions were the result of an unlawful discriminatory motive. The requirement that an Agency investigate complaints of discrimination is codified at 29 C.F.R. � 1614.108. Although Complainant alleged that when the Agency investigated the incidents leading to her termination, certain witnesses were not interviewed, we find that some of those witnesses were interviewed as part of the EEO investigation, and their testimony has been reviewed and considered by the Commission.
Next, we note that on appeal, Complainant has not disputed that issues (6) and (7) are the only issues which are timely as distinct incidents that ought to be analyzed under a disparate treatment framework (as well as within a harassment framework). Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 9, Sec. IV(A) at p. 9-10 (November 9, 1999) provides that the Commission has the discretion to only review those issues specifically raised on appeal. Accordingly, we shall only address issues (6) and (7) within a disparate treatment framework.
Disparate Treatment: Issues (6) and (7)
The allocation of burdens and order of presentation of proof in a Title VII case alleging disparate treatment discrimination is a three step procedure: complainant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its challenged action; and complainant must then prove, by a preponderance of the evidence, that the legitimate reason offered by the employer was not its true reason, but was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In issues (6) and (7), Complainant alleged discrimination when from December 2008 - April 2009, she was required to appear before the NPSB due to false and unsubstantiated allegations of patient abuse and neglect (allegedly occurring on December 7, 2008); and, on April 3, 2009, her employment as a Staff Nurse was terminated.
Complainant has not established a prima facie case of national origin or sex-based discrimination because she did not identify any comparator, outside her protected group, who (during his/her probationary period) was treated more favorably under similar circumstances. Although Complainant asserted that management failed to call for an RCA panel and a Summary Review Board/NPSB when another patient fell and had "Multiple skin tears, fragile skin, bruise to chest/neck' while under the care of non-Nigerian staff in Unit 6F," we are not persuaded that this incident was comparable to the incident involving a suicidal patient, which led to Complainant's termination. There is also no evidence that in this incident which Complainant cited, a similarly-situated RN (in his/her probationary period) was observed to have violated the same policies as Complainant, but then treated more favorably.
Finally, there is no evidence that any of Complainant's comparators subsequently had a verbal altercation with the patient, as Complainant allegedly did. We find no evidence in this record from which we can draw an inference that national origin or sex-based discrimination occurred in this instance. We note that we do not have the benefit of an AJ's findings after a hearing, as Complainant chose a FAD instead, and therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
Harassment
To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994).
Although there is evidence of friction and/or animosity between Complainant and NM, we cannot conclude that Complainant has shown that the alleged harassment was related to either her national origin or her sex. In so finding, we note that Complainant stated that NM told her that due to her "body build", her pants were "too tight across the butt", and that she should wear lab coats and buy scrubs. In the record, a witness admitted that she heard comments about Complainant in the Nurses' Station and that she would also tease Complainant about the fact that NM did not want her to "wear those tight pants with your butt showing." ROI, Ex. B4. NM denied that she made comments about Complainant's body, build, backside, or gait but noted: "on a couple of occasions I had to speak with her about some tightly fitting pants, and that conversation occurred in private." NM stated that Complainant told her "that she had gained weight and my recommendation was she wears a lab coat or something long enough to cover. [However], she wore street clothes [when] most of the nurses on the unit wore scrubs." Id. at B6. Thus, the Commission discerns no evidence of sex-based or national origin-based discriminatory harassment; therefore, we find that complainant failed to satisfy elements (2) and (3) above.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
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
____9/23/10______________
Date
1 The Summary Review Board determined that Complainant should be separated during her probationary period based, among other things, on the following: (1) Verbal abuse: Verbal confrontation by Complainant with patient, while discussing the patient with another RN in the presence of the patient. This confrontation escalated, became loud, and required staff and medical interventions, and additional hospital stay; and (2) Neglect of a patient: Complainant was not within arms length, while assigned to a suicidal patient one on one, as per policy. See Report of Investigation (ROI), Ex. C4.
2 We note that MSA and HR did provide testimony to the EEO investigator, and this testimony has been reviewed herein.
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0120102595
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102595