0120122617
09-26-2012
Rebecca L. Johnson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Rebecca L. Johnson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122617
Hearing No. 510-2010-002034X
Agency No. 200I-0544-2009103778
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 4, 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 worked as a Registered Nurse III at the Agency's Cardiology Department, William Jennings Bryan Dorn VA Medical Center in Columbia, South Carolina.
On February 13, 2009, Complainant filed a formal EEO complaint (not at issue in the present appeal) alleging that she was subjected to harassment and a hostile work environment on the bases of race, disability and in reprisal for prior EEO activity when she was charged Absent Without Leave (AWOL) and was denied a reassignment.
The record reflects that the essence of the February 13, 2009 complaint was Complainant's claim she was retaliated against for not assisting a Nurse Manager (NM) in appropriate practices against two nurses that she wanted to remove from her department. Complainant asserted that her refusal to participate in this planned action led her being retaliated against by being wrongfully charged AWOL, and precipitated her request to be reassigned to Nursing Services. The record reflects that Complainant had filed a prior EEO complaint which was settled, wherein the Agency agreed to reassign Complainant to the Pulmonary Department, expunge an AWOL from Complainant's personnel file, and partially restore Complainant's leave. In April 2009, Complainant was reassigned form the Cardiology Department to the Pulmonary Department as a Case Manager.
The record reflects that on April 13, 2009, Complainant alleged breached of the settlement agreement. However, the Agency found no breach. Complainant did not appeal the Agency's finding of no breach. Instead, Complainant initiated EEO counseling and filed the present formal complaint alleging various claims of retaliation as more fully identified below.
On August 6, 2009, Complainant filed the present formal complaint. Therein, Complainant claimed that the Agency discriminated against her in reprisal for prior EEO activity when:
A. on or about June 1, 2009, she was not selected for the position of Registered Nurse, Patient Safety under Vacancy Announcement Number 09-020-0D; and
B. she was subjected to harassment and a hostile work environment as evidenced by the following alleged events:
1. on April 6, 2009, on two occasions, the Nurse Manager told her that she was not allowed in the Cardiology Department: the first time when she was leaving the Cardiology Department and the second time was in the presence of a patient;
2. on April 7, 2009, from approximately 3:30 p.m. to 4:00 p.m., NM continuously passed by her office;
3. on April 7, 2009, three VA Police Officers and two nurses came into her work area and searched her office, going through her personal belongings;
4. on April 7, 2009, the Associate Director for Nursing (AD) instructed her, in writing, that she was to have no further contact with NM and that she was prohibited from going to the Cardiology Department;
5. on April 7, 2009, she received a Notice of Proposed Suspension that was rescinded by letter dated May 27, 2009;
6. on April 7, 2009, the Detective told her that he needed to talk with her about missing patient data that was found in her office on April 6, 2009, although the Chief of Police told her that the matter had been closed; and
7. on or about June 1, 2009, she was not selected for the position of Registered Nurse, Patient Safety under Vacancy Announcement Number 09020D, that was re-announced as Vacancy Announcement Number 09-1450D
Following the investigation into the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on September 6 and 7, 2011 hearing, and issued a decision finding no discrimination the AJ issued a decision finding no discrimination. The AJ found that Complainant established a prima facie case of reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant, which Complainant failed to show were a pretext. On May 4, 2012, the Agency issued a final order implementing the AJ's decision.
Regarding claims B.1. and B.4, the AJ noted that Complainant testified that on April 7, 2009, she received written instructions from the Associate Director (AD) directing her not to have any further contact with NM and that Complainant was prohibited from going to the Cardiology Department. The AJ noted that the written instruction to Complainant was intended to limit Complainant from physically gaining access to the medical records and taking them with her, which was an issue that was brought to AD's attention the previous day. Specifically, the AJ noted that after being reassigned to the Pulmonary Department records that belonged to the Cardiology Department were found in Complainant's new office in the Pulmonary Department. The AJ noted that Complainant's new job in the Pulmonary Department did not require her to go to the Cardiology Department.
Further, the AJ found it was not unreasonable to prohibit Complainant from going to the Cardiology Department because Complainant could gain access to any patient information she needed through the Computerized Patient Records System. The AJ further found that the relationship between Complainant and NM "was very contentious. I find Complainant's conduct and attitude towards her supervisor [NM] to be defiant."
Regarding claims B.2., B.3. and B.6, the AJ noted that during her testimony, NM stated that she became aware that upon returning to work from sick leave Complainant would be reassigned to the Pulmonary Department, she and a named Registered Nurse (RN) put in boxes some of Complainant's personal belongings that she knew belonged to Complainant. Specifically, NM stated she and RN "began packing some of [Complainant's], what we knew for sure was hers, because I didn't really want her in the department or in the service any longer than she needed to be and I wanted to minimize any issues that might occur, so we started packing up things that were obviously hers, and there was a file cabinet in that office and the bottom drawers were stacked full of medical records and [RN] had looked at them, but [RN] didn't know why they were there. Because normally we don't keep records." NM stated at that point she did not pack any of the medical records because she was not sure why they were in Complainant's file in the first place.
Further, NM stated that she was in a meeting when she received a call from RN who had moved into Complainant's old office in the Cardiology Department, advising her that certain Cardiology files that had been in the office earlier were missing. NM stated that she tried to contact AD but "I couldn't. And I tried to reach the ISO officer, and he told me to call the VA police, which I did. And I tried to reach the Chief but [there was a named Lieutenant] in the office next door, so Dispatch got him on the phone and I told him what happened and they told me they were going to be right up. And they came up to meet with me and then to also meet with [RN] to find out what happened and time frames when - -." NM stated that she did not know what office Complainant was assigned to Pulmonary Department so she asked the manager of Pulmonary Department for the information. NM stated that the information was given to the police and security. NM stated that the police searched Complainant's office, and she and RN identified several records labeled "Cardiology" to the officers. NM stated that she was instructed to take the records back the Cardiology Department and log all the patient's names for reporting purposes.
NM stated that she did not propose any type of disciplinary action against Complainant because "it wasn't my place. It was the police's responsibility to address that because it was more of a police investigation. IG issue. She didn't report to me anymore. I documented what had happened and provided that information to the people, to [AD] and those who needed it, but that was the extent of my involvement."
The AJ noted that a Detective (D1) stated that he conducted the search of Complainant's office and found a green plastic bag that the facility uses to put patient's belongings in, and in the bag, the items found contained the patient information. D1 stated that he showed the items to NM and "she confirmed that the items were the patient information" missing from the Cardiology Department. D1 stated that he then took the patient data "because it had 'cardiology' written across the top of it, and it was our understanding that [Complainant] was no longer in cardiology. So we took the items that said 'cardiology.' We gave then back to the nurse manager who was fr[om] cardiology. That was it as far as the items were concerned."
D1 further stated the Chief apparently made a statement that as long as they got the missing patient data back "it was not going to go any further. But we had to do the report. So in order to do the report the right way..I wanted to get [Complainant's] side of what happened, how the information ended up in her office. So that's when I approached her and said I need to get a written statement from you." D1 stated that Complainant provided a statement few days later. Moreover, D1 stated that there was no type of action taken against Complainant for the missing documents.
Regarding claim B.5., the AJ noted that the timing of the proposed suspension could be seen as suspect, however, the record reflects that NM was not aware the Agency was discussing settlement with Complainant during the relevant time. The AJ further noted that Agency management rescinded the proposed suspension believing that the timing of the issuance could appear to be suspect or give the appearance of retaliation.
The AJ determined that NM credibly testified that she had provided Human Resources information concerning Complainant's AWOL, and discourteous and disrespectful conduct going back as far as October 2008. NM further testified that while she had filled out several reports of contact with Complainant and documented the contact information, Human Resources did not take action until April 2009.
NM testified that she selected Complainant for the position of Cardiology Case Manager because "people had given me references on [Complainant] and told me what a great job she had done and how knowledgeable she was, I did not check references and made the decision with the Chief of Medicine at the time that we select her."
NM stated that after Complainant was selected, there were many issues concerning Complainant "that arose, multiple issues." For instance, NM stated that there were issues with other employees "where in one particular an employee [who] had been a respiratory therapist, she was a tech in the cath lab, who had been assisting with some paperwork processes basically processing patients going to and from an outside source to be seen that had felt she was harassed and complained of a hostile work environment to me. There were issues with other [employees]. There were meetings that took place that were interrupted, storming in, interrupting conversations, aggressive behavior coming across my desk with me. There were five AWOL's, I believe, which had occurred without prior knowledge or approval to not be there at the reporting time that was part of her schedule. Just a lot of aggressive behavior and communication and threatening behaviors. It was perceived by others and myself."
NM testified that "approximately November there had been sufficient incidents that had occurred. The department was in turmoil. There was so much disruption that I had to move people to different areas and we had done so much to try and improve what was going on in Cardiology and I felt like patient care was suffering because there were even a couple of incidences of refusing to do the work [Complainant] was asked to do." NM stated that during the relevant time she had "multiple" conversations with Human Resources concerning Complainant's performance. NM stated that the Director of Medicine Service concurred with her determination that Complainant should be issued a Notice of Proposed Suspension. NM stated that the information concerning Complainant's performance was provided to Human Resources in November 2008, and "they provided her the documentation in April the following year."
NM stated that during the relevant period she was not aware of the Agency discussing settlement with Complainant concerning her prior EEO complaint. Specifically, NM stated that she first learned of the prior complaint Complainant had filed against her in February 2009 had been settled in April 2010. Furthermore, NM stated that the proposed suspension was later rescinded.
Regarding claims A and B.7., the AJ noted that in her affidavit the selecting official (SO) stated that the subject position as advertised twice "so the individuals who applied the first time around, there was a selection made, and that individual declined the position." SO further stated that the subject vacancy announcement was re-announced "with the stipulation that those who applied under the first announcement did not need to reapply. They were going to automatically be considered." SO stated that there were 24 candidates, including Complainant for the subject position. SO stated that the recommending official recommended four candidates to her for consideration. SO stated that she selected two candidates for the subject positions because they were best qualified. Furthermore, SO stated that Complainant was not selected for the subject position because "she wasn't referred. She wasn't referred as being qualified for the position by the incumbent Patient Safety officer." Moreover, SO stated that during the relevant time she was not aware of Complainant's prior protected activity.
The Patient Safety Officer stated that she was the recommending official (RO) for the subject position. RO stated that after the selected candidate declined the offer, the Agency re-announced the subject position under a different vacancy announcement number. RO stated that four candidates were referred to SO for consideration. RO stated that SO selected two candidates for the subject positions.
RO stated that Complainant was not referred to the SO because Complainant's responses to the performance base interview questions were that of someone interviewing for a case manager position, not the subject position. RO further stated that Complainant lacked facilitation skills, leadership skills, report writing skills experience conducting root cause analysis and Healthcare Failure Mode Effects analysis. Specifically, RO stated that she asked Complainant "to tell me how she had been involved in implementation of patient safety guidelines and principles and the joint commission national patient safety goals. And [Complainant] replied that. . . transition of care, that she had been heavily involved in transition of care and responded as she would if she were interviewing for a case management position. She never once stated a goal that was accurate. Transition of care is not a patient safety goal. So that was like a big strike. She didn't know the patient safety goals." RO stated that during the relevant period she was not aware of Complainant's prior protected activity.
With respect to Complainant's allegation that because RO and SO knew NM she must have influenced her non-selection, the AJ found Complainant's allegation to be speculative and that no objective evidence was introduced to corroborate it.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred finding no discrimination. For instance, Complainant argues that she felt her situation "was extremely belittled in [AJ's] verdict. I was working in an extreme hostile environment. Never knowing from one day to the next where the next ax was going to drop."
Complainant further argues that the AJ "states I was disrespectful to [NM] during the trial. What did I do? If I remember correctly the trial was a complete shambles and if anything represented disrespect towards me, I waited almost 3 years for my day in court to have everything completed on video/audio. No problem existed with the audio when I underwent a day and half of grueling cross examining, but as soon as [NM] begins her cross exam then the audio mysteriously goes down. Not once but on several different occasions. My lawyer and [NM] had to share a microphone which looked like a Saturday Night Live sitcom with [NM] sitting at my table in my personal space, right next to me. Was that appropriate? My lawyer was not able to keep his focus with his thought process constantly interrupted by having to hand the micro phone back and forth. Is that fair? Does the VA attorney and [AJ] seriously in their hearts feel that I received a fair trial?...I don't understand why [AJ] was so scathing in her comments against me. It appeared all quite personal with all subjective, not objective data incorporated into her rational. It was actually very hurtful to read and I felt that I had been victimized all over again."
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant provided no persuasive arguments indicating any improprieties in the Agency's findings. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Moreover, we discern nothing in the conduct of Agency attorneys reflecting a breach of ethics, that would have affected the AJ's disposition of the instant case. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
September 26, 2012
__________________
Date
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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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