0120152415
11-14-2017
Ludie M.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ludie M.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152415
Agency No. 200H05612014101751
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 5, 2015, final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Agency's New Jersey Health Care System (HCS) facility in Lyons, New Jersey.
On February 5, 2014, Complainant contacted an EEO Counselor. On June 4, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment in retaliation for her prior protected EEO activity under Title VII.
The record shows the Complainant had previously filed a previous EEO complaint in 2009 concerning management's proposal to suspend her. In November 2011, the complaint was settled. Complainant alleged that management was aware of this complaint and its settlement. The Agreement required Complainant be moved to the East Orange campus, but Complainant requested to stay at the Lyons Campus, which the Agency permitted.
On April 15, 2013, Complainant was transferred to Ward 1C on the night shift, where S1 became her supervisor. S1 denied that she had any knowledge of Complainant's prior EEO activity and was not a party to her prior settlement agreement.
In support of her retaliatory hostile work environment claim, Complainant proffered the following allegations:
1. On April - May 2013, Complainant was switched to the night shift and forced to work in the capacity as a Nursing Assistant, rather than a Registered Nurse.
2. From May 27, 2013 to July 15, 2014, Complainant was threatened and harassed by Nurse Coworker (CW1) and Nurse Coworker (CW2).
3. From May 27, 2013 to July 15, 2014, CW2 failed to communicate and assist Complainant whenever Complainant was assigned to work with her.
4. On May 27, 2013, three nurses fabricated a statement in which they accused Complainant of threatening them.
5. In May/June 2013, an unknown individual deleted from the VA computer system Complainant's patient nursing notes, pertaining to her interaction with a patient on May 27, 2013.
6. Complainant was not paid for working on January 12 to 26, 2014.
7. From March 2 to March 15, 2014, Complainant was suspended from duty.
8. On April 27, 2014, nurse CW1 threatened to strangle Complainant and management failed to take action after it was informed of the event.
9. During the month of June 2014, nurse CW1 stated to Complainant, and anyone else that was listening, they had better be careful of what they say because Complainant takes everything literally, and might call the police.
The record shows that the EEO Investigator asked Complainant twice for information to corroborate her contentions, but Complainant failed to provide any evidence or the name of witnesses to support her claims.
The investigative report revealed the following information concerning Complainant's allegations:
Allegation 1 - Night Shift and Nursing Assistant Duties
Between October 2011 and April 2013, Complainant had been working on the day shift. In April 2013, she was returned to the night shift and asserted she was asked to do nursing assistant duties because there were too many registered nurses on the floor. Management witnesses stated that Complainant was placed on the night shift at her own request. Complainant does not deny this assertion. Management witnesses denied assigning Complainant any duties not expected of all the registered nurses, noting all nurses are expected and required to provide patient care, including, at times, assistance with bathing and feeding.
Allegations 2, 3, 8 and 9 - Coworker Harassment
Complainant claims that once she returned to the night shift in Ward 1C in 2013, she was harassed by the other nurses, who were all friends, and were aware of her prior EEO history and had been told by other nurses that Complainant had prior disciplinary problems. She said she reported the matters to management, but management took no action to stop the harassment.
Specifically, she asserted that when she first arrived, CW1 commented that she believed that Complainant was not needed in that unit and asked her "why did you accept to come here?" She averred that CW1 had a close personal relationship with the Director of Clinical Services, who had been involved in the negotiations of her settlement agreement that was entered September 2011.2 Complainant alleged this hostility from CW1 continued through June 2014, including CW1 saying to Complainant that if she did not shut up she was going to strangle Complainant, and warning other nurses that Complainant would try to get them in trouble.
Complainant alleged that she was also treated in a hostile manner by CW2. Complainant asserted that CW2 would not communicate with her or assist her when they were working together.
S1 stated that Complainant never reported to her that she was being harassed by any of the other nurses. S1 also stated that Complainant requested to work the nightshift when she first arrived and that request was granted. Complainant, on the other hand, alleged she told S1 about the harassment and was told to request a transfer to another unit.
Allegations 4, 5 and 7 - Suspension and Deletion of Notes
On May 27, 2013, S1 was on leave at the time, but the nurse covering for her left her with several reports concerning Complainant. First, she stated that she believed Complainant provided improper care to a patient by failing to clean up after he vomited. She and two other nurses also reported that Complainant threatened them if they did not keep quiet about it. They alleged she said something to the effect that, "[i]f you say something about me I will get you. Somebody want to bring me down, I make sure that person go down too."
Complainant alleged that three nurses fabricated the accusation that Complainant had threatened them. Complainant stated that another nurse made an error in a patient procedure and Complainant corrected the error. Complainant admits she told several other nurses about the serious nature of their failure to provide adequate nursing care to the patient, but she denies making any threats against them. Complainant acknowledged that there was a heated discussion after she explained to her coworkers that she had worked at the VA long enough to know that if anything happened to the patient, "we all would get in trouble and that [she] wanted to make sure the patient was well taken care of."
During this incident, Complainant apparently wanted to call the patient's doctor, but was instructed by the nurse-in-charge that it was not necessary. However, Complainant did call the physician, who came to the unit to evaluate the patient. A decision was made to transfer the patient to another unit, and Complainant was asked to transport the patient. Complainant alleged that due to some confusion about the assignment, she did not do the transport. The nurse-in-charge later accused Complainant of being "insubordinate" for calling the doctor and "refusing" to transport the patient.
S1 arranged for a management inquiry of the incident. It was conducted by someone other than S1. As a result of the findings of the inquiry, on August 20, 2013, Complainant received notice of a proposed fourteen (14) day suspension for improper patient care and threatening her coworkers. Sometime later, in responding to the proposed suspension, Complainant discovered that her nursing notes on the incident in question were no longer on the VA computer system.
On October 31, 2013, the Associate Director met with Complainant, a union representative, and the Human Resources Specialist to hear her response. Complainant denied ever making any threatening statements. She stated that she believed the animosity towards her is because of her return to the unit, which created a situation where staff members had to rotate to different units due to there being an additional nurse on the tour.
On December 31, 2013., Complainant was served with notice of the final decision to suspend effective January 12, 2014 through January 26, 2014. The Associate Director indicated she sustained the proposed suspension due to the seriousness of the charges and Complainant's past disciplinary record, that included an earlier suspension. However, prior to serving the suspension, Complainant received an amended suspension notice due to a technical error indicating the suspension would begin on March 2, 2014.
Allegation 6 - Pay Claim
Originally, Complainant's suspension was to be served on January 12 through January 26, 2014. However, it was later postponed until March 2014. Therefore, Complainant was scheduled for and worked on the January dates. The Agency concedes that due to an administrative confusion about the change in the time served on suspension, she was initially not paid for the Janaury dates. However, it is undisputed that the error was later corrected and was paid for the period in question.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The Agency found that Complainant failed to prove that the Agency discriminated against her or subjected her to harassment, as alleged. The Agency reasoned that "a review of the events . . . revealed a number of petty work place disagreements and workplace infractions between Complainant, S1 and her coworkers." The Agency stated that, in the main, the events did not occur as Complainant alleged and that Complainant failed to provide any evidence to support her contentions. The Agency found that the conduct complained of was not sufficiently severe or pervasive to create a hostile work environment. The Agency concluded that "because we have found that the Complainant fails to establish a prima facie case of hostile environment harassment, we need not determine whether management is liable for harassment."
This appeal followed.
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. (Aug. 5, 2015) (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").
Disparate Treatment -- Suspension
The established order of analysis in a claim of disparate treatment, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, upon review of the record, we find that the Agency met its burden of articulating legitimate, nondiscriminatory reasons for its actions. The responsible management officials stated that the suspension was based on reports to management, supported during an inquiry into the matter, that Complainant had threatened other employees and not properly cared for a patient. Management cited the reports provided by Complainant's co-workers and the nurse left in charge that night, who provided statements that supported management's position. These reports were acted upon as part of the Agency's normal operations to protect patients and to which all employees were subjected.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, Complainant did not establish that the reason for the actions taken against her were due to retaliatory hostility. We conclude that the Agency's finding that Complainant did not establish by a preponderance of the evidence that the Agency's stated reasons were a pretext for unlawful retaliatory is supported by the record.
Harassment/Hostile Work Environment Claim
To establish a claim of hostile environment 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 retaliatory animus; (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 Agency liability. See Henson v. City of Dundee, 682 Fd.2 897 (11th Cir. 1982).
In other words, to prove her harassment/hostile work environment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken in retaliation for her prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
The record is clear that Complainant had a contentious relationship with a number of her colleagues and supervisors. Complainant cited numerous incidents which she found to be adverse or disruptive to her. However, we note that Title VII is not a general civility code. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). The record simply does not contain evidence, beyond Complainant's bare assertions, that her prior EEO activity played a role in the incidents at issue. Complainant chose to request a final decision from the Agency without making a hearing request so the Commission does not have the benefit of an Administrative Judge's credibility determinations on witness testimony. Therefore, we can only evaluate the facts based on the weight of the evidence presented during the investigation. There is not enough evidence from which a reasonable fact finder could conclude the Agency's actions were a pretext for unlawful retaliation.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 14, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 As already noted, the Agreement required Complainant move to the East Orange campus, but Complainant requested to stay at the Lyons Campus, which the Agency permitted.
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