Maura S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 12, 2020

2019000964 (E.E.O.C. Aug. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maura S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019000964 Agency No. 200H05182018100277 DECISION On November 13, 2018, 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 November 2, 2018, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to a hostile work environment, discrimination, and reprisal for her protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rehabilitation Technician at the Agency’s facility in Bedford, Massachusetts. On October 17, 2017, Complainant initiated contact with an EEO Counselor. Amongst other claims, Complainant raised a breach of settlement agreement based on a prior settlement agreement (Agency case number 200H-0518-2015101828). 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. 2019000964 2 On November 20, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the basis of reprisal for prior protected EEO activity when2: 1. in June 2017, after Complainant was denied reassignment to a desired unit due to being advised that there were no vacancies and no staffing need, Complainant learned that a coworker (CW1) was being transferred to that same unit on November 27, 2017; 2. in September 2017, the Nurse Manager forwarded an email she received from Complainant to the entire unit regarding the discovery of drug related contraband; 3. from September 2017, and ongoing, the Nurse Manager harassed Complainant about the following: the Nurse Manager no longer communicates about leaving the floor or patient nourishments and ignores Complainant’s emails; tell others that Complainant is not moving from her unit; Complainant has to do the Nurse Manager’s work at times; and the Nurse Manager humiliates Complainant in front of others; 4. on or about September 23, 2017, Complainant asserted that the Agency breached a prior settlement agreement (Agency case number 200H-0518-2015101828) when it did not restore Complainant’s sick leave balance as stipulated; 5. on October 17, 2017, the Nurse Manager forwarded Complainant’s email about a report involving patient safety and neglect against a coworker, (CW2) which caused a hostile work environment with CW2; 6. as of November 3, 2017, management has failed to move CW2, who continues to make Complainant’s job difficult; 7. on December 12, 2017, Complainant became aware that she had been charged for 8 hours absent without leave (AWOL) for December 7, 2017, when she called off due to illness; and, 8. on January 4, 2017, Complainant was charged with AWOL for a snowstorm despite calling into Nursing Coordinator and having accrued leave. The Agency accepted all claims for investigation, except for claim 4. The Agency dismissed claim 4 for failure to state a claim pursuant to 29 C.F.R. § 1614(a)(1). The Agency forwarded the breach of settlement agreement allegation to its Compliance Office to determine if the Agency was in compliance or in breach of the prior settlement agreement. The Compliance Office later determined that the Agency was in compliance. 2 Claims were reordered chronologically for this decision. 2019000964 3 The investigative record reflects the following pertinent matters relating to the subject claims. Complainant contends that, in June 2017, she was denied a reassignment request to her desired units, Units 78G and 78E, due to a lack of vacancies. However, she later learned that a CW1 was to be reassigned to Unit 78E in November 2017, and then reassigned again to the Domiciliary Program. Complainant later requested a reassignment to the Domiciliary Program, but her request was denied. The Nurse Manager stated that CW1 was allowed to move because she had submitted a transfer request to move to Unit 78E or Unit 6B. The Nurse Manager further asserts that rehabilitation technicians cannot work in Units 78E or 6B due to a grandfather clause in the job description. The only exception is if the employee is willing to accept a demotion. The Former Deputy Nurse Executive confirmed that rehabilitation technicians would have to accept a demotion in order to work in either Unit 78E or 6B. The Nurse Manager also noted that Complainant was offered the ability to move, pending a demotion, but had declined the offer. In September 2017, the Nurse Manager forwarded an email she received from Complainant to the entire unit regarding Complainant’s discovery of drug related contraband. Complainant asserted that the Nurse Manager should not have forwarded her email, but instead should have reworded the email so as to not identify Complainant. Complainant felt the Nurse Manager handled the situation poorly. The Nurse Manager acknowledged sending the email. The Nurse Manager asserted that her goal was to promote safety and transparency. She further noted that Complainant was praised for reporting the matter. On October 17, 2017, Complainant emailed the Nurse Manager that CW2 was neglecting patients and that it was causing potential safety concerns. Complainant asserted that the Nurse Manager created a hostile work environment when she then forwarded her email to CW2. Complainant notes that a fact-finding investigation was conducted by the Deputy Chief Executive, but that she was never interviewed for her side of the story. The Nurse Manager denied intentionally creating a hostile work environment. The Nurse Manger stated that she forwarded the email to CW2 to provide her an opportunity to respond to Complainant’s concerns. The Nurse Manager also forwarded the email to two charge nurses, and other employees who were on duty with CW2, asking for a written response as well. The Nurse Manager noted that CW2 had previously complained of Complainant publicly humiliating her, and that there was an ongoing contentious relationship between Complainant and CW2. The Nurse Manager noted that she reached out to Nursing Leadership and the Human Resources Department for assistance and best tips for moving forward. The Nurse Manager believed it was best to open the communication channels between both parties. Complainant denied ever publicly humiliating CW2 and again asserted that she was never asked her side of the story. She also noted that nothing has changed, and that CW2 continued to be neglectful in her duties. Complainant asserted that the Nurse Manager failed to take appropriate action, and CW2’s mere presence created a hostile work environment. 2019000964 4 Regarding CW2, the Deputy Chief Executive, along with the Union President, conducted an informal fact-finding on Complainant’s allegations. Having interviewed four witnesses, both determined that there were no patient safety issues, as alleged by Complainant. The Associate Director of Nursing/Patient Care acknowledged that despite her best intentions, the Nurse Manager should not have forwarded Complainant’s email to CW2. The Associate Director of Nursing found the Nurse Manager’s actions to be inappropriate and temporarily removed her from the unit pending proposed disciplinary action. On December 12, 2017, Complainant became aware that she had been charged for 8 hours absent without leave (AWOL) for December 7, 2017. Complainant noted that she had called in sick due to illness. Complainant felt the Time Keeper intentionally entered her time off request late resulting in the AWOL. Complainant asserted that it was another example of reprisal. Management officials stated that Complainant’s prior EEO activity was not a factor in this event, and that the request was simply entered too late as a mere administrative oversight. On January 4, 2017, Complainant called in around 6:00am to report that she was calling out for the second shift. During the investigation, Complainant stated that she called out due to an impending snowstorm. However, Complainant acknowledged that it was not snowing nor did she mention the snowstorm during her call. Complainant was later charged with being AWOL. Complainant noted that two other nurses also called off and were paid without issue. The Associate Director of Nursing stated that only nurse managers have authority to approve leave, and that Complainant did not speak with a nurse manager when she called in. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not provide an appellate brief on appeal. The Agency asserts that its final decision finding no discrimination was appropriate. The Agency argues that Complainant failed to demonstrate that the Agency’s legitimate, nondiscriminatory reasons were pretext for discrimination. STANDARD OF REVIEW 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 2019000964 5 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”). ANALYSIS AND FINDINGS As a preliminary matter, we acknowledge the Agency’s procedural dismissal regarding claim 4. The Agency has indicated that claim 4 has been addressed separately as a claim of breach of a settlement agreement. Based on the record, we see no reason to disturb the dismissal. Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Unlawful Harassment Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). To establish this claim, a 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 2019000964 6 creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. The Supreme Court in Harris explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 78 (1998). With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Reprisal Complainant also alleges that the Agency retaliated against her. In accordance with the burdens set forth in McDonnell Douglas, and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Analysis Regarding Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant established a prima facie case of discrimination based on her prior protected EEO activity, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, Complainant asserted that she was denied a transfer reassignment request to move to Unit 78E. Here, the record demonstrates that Complainant was offered a position in Unit 78E, but declined the offer. It was upon her second request to reassign to the Domiciliary Program where her request was denied. Management explained that there were difficulties in the program at the time, and Complainant’s reassignment would not be a proper fit. Regarding her leave requests, management explained that the eight hours of leave for December 7, 2017 request was not processed in time as an administrative oversight. The resulting AWOL was not the result of reprisal. 2019000964 7 Concerning her January 4, 2017 request, Complainant asserted that she called in and spoke with the Nursing Coordinator regarded her request to take sick leave. While Complainant spoke with a staff member, nursing coordinators do not have the authority to approve or deny requests. In that regard, while Complainant was able to inform someone that she would not be arriving for her evening shift, it did not mean that it was an approved absence. Even if the claims occurred as alleged, Complainant failed to show that the responsible Agency officials were in any way motivated by discriminatory or retaliatory animus. In addition, many of the actions taken by the alleged discriminating officials were routine managerial actions, such as job assignments, and leave requests, which, absent discriminatory animus, will not be second- guessed by the Commission. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Regarding Complainant’s claim of harassment, she provided that the Nurse Manager subjected her to a hostile work environment by poorly handling a variety of work incidents. For example, Complainant had reported CW2 to the Nurse Manager regarding a patient safety issue. In that matter, the Nurse Manager forwarded her concerns directly to CW2. The Nurse Manager asserted that she wanted CW2 to have an opportunity to respond to the allegations. Complainant asserted that it was unprofessional to forward her concerns. Upper management agreed with Complainant and temporarily removed the Nurse Manager from the unit pending proposed disciplinary action. Complainant also noted that when she reported finding a drug related contraband, she did not expect the Nurse Manager to forward her email to the entire unit. Complainant felt that this exposed her, and that the Nurse Manager again handled a workplace matter in an unprofessional manner. While the Nurse Manager could have handled both situations with better judgment, neither demonstrate evidence of a pervasively hostile work environment created based on Complainant’s prior EEO activity. We note that the discrimination statutes are not a civility code. What is prohibited is “behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. at 81. In sum, the evidence does not support a finding of discrimination on any basis, the presence of discriminatory animus, or the existence of a hostile work environment. The Commission notes that 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 or referenced herein, we AFFIRM the Agency’s finding that it did not discriminate against Complainant as alleged. 2019000964 8 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 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. 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. 2019000964 9 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 Carlton M. Hadden, Director Office of Federal Operations August 12, 2020 Date