[Redacted], In the Estate of ,1 Lois G., 2 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2021001753 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 In the Estate of ,1 Lois G.,2 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001753 Hearing No. 410-2018-00338X Agency Nos. 200I-0508-2017105296, 200I-0508-20141034523 DECISION On January 18, 2021, 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 December 21, 2020, final order 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. 1 In correspondence dated August 25, 2021, Complainant’s attorney informed the Commission of Complainant’s death and the estate’s intention to proceed with the instant appeal. 2 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. 3 Due to an administrative error, the EEOC Hearing Number originally associated with this Agency Case number (Hearing No. 410-2016-00235X) was closed. When the error was realized, the case was consolidated with Complainant’s subsequent complaint under EEOC No. 410-2018- 00338X. 2021001753 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse in the Post-Anesthesia Care Unit (PACU) at the Atlanta VA Medical Center in Decatur, Georgia. On August 4, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity. The Agency accepted Complainant's complaint for investigation on August 14, 2014. A report of investigation was completed, and the Agency informed Complainant of her right request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. While her August 4, 2014 case was pending a hearing, Complainant filed another EEO complaint also alleging retaliation for prior protected EEO activity. The Agency accepted the complaint for investigation, and upon completion of the investigation, Complainant again requested a hearing before an AJ. The two complaints were consolidated for hearing. Complainant acknowledged that the AJ correctly framed the claims as follows: 1. Whether the Agency subjected Complainant to disparate treatment in retaliation for her EEO activity when: a. On May 16, 2014, Assistant Nurse Manager denied Complainant’s request to be reassigned to a soon-to-be vacant position in Ambulatory-Surgical Wing; b. On May 30, 2014, Assistant Nurse Manager denied Complainant’s request to swap with a nurse who was temporarily working in the PACU and wished to remain working in PACU as opposed to returning to the Ambulatory-Surgical Wing; c. On June 13, 2014, Complainant was forced to use annual leave for a scheduled interview, although other employees were granted 59 minutes off on the same day; d. On August 4, 2014, Assistant Nurse Manager changed the Complainant’s tour of duty, adding an additional 6 hours to the end of Complainant’s tour; e. On September 3, 2014, Complainant became aware that she was denied the opportunity to serve as charge nurse in the PACU; 2021001753 3 f. On September 25, 2014, Nurse Manager offered Complainant the charge nurse position, but eliminated a key benefit of the position, the earlier shift of 7:00-3:30; g. On or about September 1, 2017, Assistant Nurse Manager denied Complainant’s request to be reassigned to an open position in Ambulatory Surgery; h. On October 12, 2017, Assistant Nurse Manager downgraded Complainant’s 2016-2017 Performance Evaluation from High Satisfactory to Satisfactory; and/or i. On October 27, 2017, Complainant was not selected for the Registered Nurse in Ambulatory Surgery position advertised under Vacancy Announcement Number JV-17-DMD-2005766BU. 2. Whether the Agency subjected Complainant to harassment in retaliation for her prior EEO activity when: a. The events identified in Claim 1 occurred; b. On an unspecified date, Assistant Nurse Manager stated to one of Complainant’s coworkers, “I would watch out for that one there [Complainant] . . . [Deputy Director of the Atlanta VA Medical Center] is out to get her;” c. On August 18, 2014, Complainant became aware of management’s intent to move another new nurse into an early shift that Complainant had previously requested; d. On August 29, 2014, Assistant Nurse Manager pulled aside Complainant’s coworker, Registered Nurse, during the voting process for charge nurse in PACU and stated, “You better vote because if you don’t, you’re just going to get who you get;” e. On or about October 1, 2014, Complainant received her performance standards, which rated her at a 1 out of 5 in several areas; f. On October 27, 2014, when Complainant brought two incidents involving an employee arriving 15-30 minutes late every day and another employee’s performance to the attention of Acting Assistant Nurse Manager, Acting Assistant Nurse Manager made light of the issues and dismissed Complainant’s concerns; 2021001753 4 g. On October 31, 2014, when Complainant did not take a lunch break due to short staffing and requested overtime or compensatory time, she was berated and badgered by management for not taking a break; and/or h. On October 12, 2017, Assistant Nurse Manager withheld Complainant’s 2015-2016 Performance Evaluation and annotated “No signature upon receipt” as if to document Complainant refused to sign. The Agency timely filed a motion for summary judgement, which was denied by the AJ. The AJ held a hearing on October 19 through 22, 2020 and November 23, 2020. The AJ issued a bench decision on December 8, 2020, which he signed and entered as a final order on December 15, 2020. The Agency subsequently issued a final action adopting the AJ’s finding that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant filed the instant appeal. ANALYSIS AND FINDINGS On appeal, Complainant argues that the AJ made clearly erroneous findings of fact, findings that were not supported by substantial evidence, and that the AJ also erred as a matter of law with respect to the non-selection claim. First, Complainant contends the AJ erred in finding no discrimination regarding her non-selection (Claim 1(i)) because she was observably superior to the selectees due to her seniority, her favorability as an internal candidate under union rules, her greater experience in Ambulatory Surgery. Complainant states that while the AJ made a credibility determination regarding the internal investigator’s conclusion that Complainant should have had to apply for a position, he did not address her testimony regarding changed scoring and “admitted bias” by a panel member. Complainant states that the AJ ascribed reasonable error to management’s violation of union rules, but neither Assistant Nurse Manager nor Acting Nurse Manager ever testified that they were mistaken. Complainant argues the AJ’s finding regarding the internal investigation was narrow and inapplicable to the evidence regarding scoring discrepancies and the lack of interview notes. Complainant argues the finding regarding her non-selection is an error of law because Commission precedent requires more than just arbitrary interview scores with no explanation. Additionally, Complainant argues the AJ erred by failing to consider her evidence of pretext, including the Agency’s violations of the collective bargaining agreement. She also contends the AJ erroneously determined that one of the comparators cited by Complainant was not similarly situated, because she was not temporary. Regarding her witnesses, Complainant contends the AJ’s “sweeping generalization”, that they were biased because of their relationship with her, was not based on fact or testimony and, therefore, should receive no deference. Moreover, she takes issue with the AJ’s decision not to credit the internal investigation or her co-workers’ testimony. 2021001753 5 In response, the Agency maintains that its final decision adopting the AJ’s finding of no discrimination should be upheld. The Agency reiterates that Complainant did not receive a position in Ambulatory Surgery because none was available, she did not apply for a position, and/or she was not selected. Complainant has not demonstrated, argues the Agency, that its proffered legitimate, non-discriminatory reasons were pretext for discrimination. Further, the Agency contends the AJ did not err in finding its witnesses to be credible and the evidence developed during the five-day hearing supports the AJ’s decision. The Agency contends Complainant failed to present evidence of pretext and her appellate arguments are merely unsupported disagreement with the judge’s factual findings and legal conclusions. 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. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Here, Complainant has not met her burden to show the findings of the AJ should be disturbed. While she repeatedly argues that the AJ failed to consider her evidence of pretext, but she does not point to specific evidence or how the AJ failed to consider it. Rather, the AJ’s findings are supported by substantial evidence in the record. Regarding the AJ’s credibility determinations, Complainant has not presented any documents or other objective evidence that contradicts any testimony, nor shown that the testimony of Agency witnesses so lacks in credibility that a reasonable fact finder would not credit it. As such, we find no reason to disturb the AJ's credibility determinations. While the record appears to reflect personality conflicts between Assistant Nurse Manager and Complainant, Complainant has not met her burden to show that Assistant Nurse Manager, or any of the other named Agency officials, were motivated by Complainant’s prior EEO activity. Complainant argues the internal investigation should not have been discredited by the AJ, but even if it were not, three of the witnesses interviewed in that investigation stated that Assistant Nurse Manager treated Complainant poorly because Complainant used to date a man with whom Assistant Nurse Manager later became “friendly”. Complainant was the only person in that investigation to state that Assistant Nurse Manager was motivated by Complainant’s prior EEO activity. Additionally, Complainant’s own appeal brief admits that Acting Nurse Manager acted out of a sense of loyalty to Assistant Nurse Manager (as opposed to Complainant’s prior EEO activity). 2021001753 6 While we understand Complainant is rightly frustrated about her treatment, she has not shown the Agency was motivated by discriminatory or retaliatory animus, as opposed to personal reasons. We note that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey v. Equal Emp't Opportunity Comm'n., EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision of the Agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021001753 7 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 September 6, 2022 Date