[Redacted], Jenee W.,1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 27, 2021

Appeal No. 2020001223 (E.E.O.C. Jul. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jenee W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001223 Hearing Nos. 443-2017-00050X, & 443-2018-00022X Agency Nos. 200J-0695-2016102637 & 200J-0695-2017101932 DECISION On November 14, 2019, 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 October 15, 2019, final decision concerning her equal employment opportunity (EEO) complaints 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Agency’s Clement J. Zablocki Medical Center facility in Milwaukee, Wisconsin. On April 6, 2016, Complainant filed an EEO complaint under Agency No. 200J-0695- 2016102637 (Complaint 1), alleging that the Agency discriminated against her on the bases of race (American Indian), sex (female) and reprisal for prior protected EEO activity when: 1. From October 2015, Complainant was subjected to harassment; 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. 2020001223 2 2. On January 20th and 26th, 2016, Complainant's tour of duty was changed without notifying her; 3. On August 23, 2016, Complainant’s supervisor (S1: Caucasian, female) shared information regarding Complainant's medical information and EEO complaint with staff members. On April 3, 2017, Complainant filed a second EEO complaint, under Agency No. 200J-0695- 2017101932 (Complaint 2) alleging that the Agency discriminated against her on the basis of reprisal when: 4. From August 2016, Complainant was subjected to harassment; 5. On February 24, 2017, Complainant was charged three hours of AWOL; 6. On March 22, 2017, Complainant was issued a written admonishment; and 7. On August 25, 2017, Complainant was suspended for 14 days. The Agency consolidated the claims and 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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that the Agency articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to show that such reasons were pretextual. With regard to Complainant being charged with AWOL and receiving a written admonishment, the FAD found that management officials explained that she had arrived late for her shift and did not provide notice or receive pre-approval from management. With regard to her suspension, the FAD found that management explained that Complainant “accessed a patient’s medical records” and her actions reflected poorly on the Cardiology service. With regard to S1 sharing Complainant’s medical information and EEO information, the FAD found that Complainant inadvertently left copies of her medical and EEO information at the printer and that she herself was therefore responsible for divulging her own confidential information. The FAD further found that there was “no evidence” that management improperly shared Complainant’s information. Finally, with regard to harassment, the FAD found that Complainant failed to show that the actions complained of were based on race, sex, or reprisal. The instant appeal followed. 2020001223 3 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”). Medical Disclosure With regard to claim 3, the Rehabilitation Act requires federal employers to protect the privacy of medical information they collect. Information “regarding the medical condition or history of any employee shall ... be treated as a confidential medical record, except that supervisors and managers may be informed regarding necessary restriction on the work or duties of the employee and necessary accommodation.” 29 C.F.R. § 1630.14(c). Improper dissemination is “a per se violation of the Rehabilitation Act, and no showing of harm beyond the violation would be necessary.” Hampton v. United States Postal Serv., EEOC Appeal No. 01A00132 (April 13, 2000). Complainant averred that: I actually printed out my EEO timeline, and I wanted to go through it and make sure what I put in there was correct. What happened was the printer at work broke and it only printed up to page, like, 30. There was 55 pages at that time of stuff. On Monday, the printer was fixed. So that would have been Monday the 15th. I never saw it being taken off the printer; however, [a coworker] and [S1] did leave for an hour and a half. They said they had an emergency meeting. They were gone for an hour and a half. The following Friday, I was called up to [the Division Manager (DM: Caucasian, female)]'s office. She had told me one of the coworkers wanted to remain anonymous and was concerned about what was written on the back. On the last page was my doctor visits, my information about depression, anxiety, stuff like that, and how this has made that worse. So she gave me back the timeline . . . and I went through it and there was writing on a few pages. And it looked like it was [a coworker’s] handwriting, from what I've seen in the past. And after it was given back, since then, everything has gotten worse. We note that Complainant identified the coworker using just her first name, and the record shows that at least two office colleagues share that same first name. The Investigator sought affidavits from both, identified hereafter as CW1 and CW2 (both Caucasian, female). CW1 averred that: 2020001223 4 I know that many of the nurses were discussing the paperwork that was found on the printer, which contained [Complainant’s] medical information as well as the information that she had gathered from others in regards to the bullying she had been experiencing. [CW2] spoke to me about the papers and claimed that she could not believe what she read, so I know they were shared. CW2 denied all knowledge or direct involvement in the matter. DM averred that: I have no knowledge that [S1] shared any of the complainant's medical information or EEO complaint with staff members. According to [S1], when I asked her about this accusation, she stated that she did not, nor would she ever, share employee medical information or EEO complaints with any of her staff. [S1] told me that the Complainant has been overheard on several occasions sharing her personal information with some of her peers. Finally, S1 averred that: In August a 51-page report was put under my office door. I believe that it would have come off the public clinic printer. The top page -- when I looked at the document, I was able to identify that it had belonged to [Complainant]. After reading the top page, I immediately called my division manager in human resources so that I could receive immediate direction. [Complainant] indicated that she was suicidal but without intent. I needed to know what my responsibility was now that I had found this document, and I moved it up to my boss in human resources. I don't know who found the document. Like I say, I believe it was printed off one of the printers in the department, and it was under my door. . . . So I turned the 51 pages over to my division manager. I have no reason to discuss [Complainant’s] medical conditions with anyone. She does -- she does that quite willingly herself, and I wouldn't have specially mentioned this EEO complaint to any other staff. Following a review of the record we find no per se violation of the Rehabilitation Act. Nor do we find that the alleged action constitutes an act of reprisal. Complainant’s own testimony indicates that due to a malfunction with the printer, several pages of the document were printed out after Complainant had left the printer. Complainant thus left her medical information in a public place for anyone to find. We find that Complainant has provided no evidence that S1 acted improperly in any way, much less that she disseminated any of Complainant’s medical information. With regard to CW2, while CW1 averred that CW2 said she “couldn’t believe what she read” we find that that is insufficient to establish that CW2 acted improperly since CW2 could have simply been reading the document to try to ascertain what it was. We note in this regard that, while CW1 averred that she knew the information was “shared,” she did not aver that CW2 shared medical information with third parties, only that CW2 said she “couldn’t believe what she read.” 2020001223 5 Nor did CW1 specify which nurses did “share” the information. Because CW1 did not specify who was sharing the confidential information, we are unable to find that any specific individual violated the Rehabilitation Act. Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. With regard to Complainant’s tour of duty being changed, S1 averred that Complainant requested the change, and that “She frequently requests earlier starts than what she was hired for, and so I believe that we accommodated her.” S1 further averred that Complainant must have been told of the change beforehand because she showed up for work on time on the day in question. With regard to the second date identified by Complainant, S1 averred that “January 26th was not changed; so I don't know how to answer that question. I have the original time sheets included, and there's no change in time.” With regard to Complainant being charged with AWOL and receiving a written admonishment, S1 averred that the reason for the actions was because Complainant “did not start at the time her shift began, and did not call in.” S1 further included a copy of an Agency memorandum on employee’s use of absence and leave, which includes the following: “Each employee is responsible for verifying that his or her pre-requested leave has been approved prior to the employee’s absence from duty.” The record further includes Complainant’s leave record, which does not show that Complainant was granted pre-approved leave on or around the date in question. 2020001223 6 Instead, the record shows that a request for 2 hours and 45 minutes of comp time was entered on February 22, 2017, at 6:46 PM on the date in question, which is after Complainant used the leave. The record further shows that S1 denied the request. With regard to Complainant being suspended for 14 days, the August 25, 2017 memorandum notifying Complainant of her suspension stated that the action was being taken based on “charges A, B, and D as stated in the notice of proposed suspension are sustained” while charge C was not sustained. The notice of proposed suspension (Notice) identified the charges as follows: Charge A: Performing Duties Outside of Your Area of Assignment. Charge B: Unauthorized Access of a Patient’s Medical Record Charge D: Improperly Documenting Progress Note. The Notice further explained that with regard to Charge A, Complainant sought to help a personal acquaintance who was a patient by getting involved with their treatment even though she was not assigned to the unit in question. With regard to Charge B, Complainant entered a progress note into the patient’s record even though Complainant was not authorized to access the patient’s records. With regard to Charge D, Complainant entered inaccurate information in a progress note documenting her involvement. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has not met this burden. With regard to Complainant’s tour of duty being changed, Complainant averred that this occurred on numerous occasions and that: I would say, a week, maybe two weeks that apparently the schedule was changed. They did not notify me. On all occasions, they had (name omitted) call me and ask me why I wasn't at work, how come I was late. And I explained to them that my schedule said 9:00. You guys changed it to 7:30. I was not even aware. They changed it to 7:30, yes, so then it looked like I came in late. In her rebuttal statement Complainant averred that she was “written up” for not adhering to her schedule “but then I believe she2 did retract it.” Complainant further averred that: I did not request the change on the schedule, I was called by (name omitted) who stated "[S1] wanted me to call and ask where you are? She said to call from my phone so you would answer." I had told her that I am almost there but they 2 Complainant did not specify who “she” referred to and the investigator did not inquire further. 2020001223 7 changed it to 9 am and I was not told about this change. I arrived at 8:10 or around that time (I had faxed the schedules in question after being changed) I also drive 25 miles so I am always at work early to beat traffic the 8 am shift was because I arrived early not because the schedule. Regarding being charged with AWOL and receiving a written admonishment, Complainant averred that she spoke with S1: In the break room as I was writing it in the book, [S1] verbally said it was okay this was about three days before the incident. I usually email her so I have a “hard record.” . . . I should have emailed [S1] that way I wouldn’t be here. . . . I did tell [S1] that I did write it in when we were speaking in the break room . . . [S1] initialed it but the sheet had went [sic] missing. . . . I cannot be 100% that [sic] this was the same appointment, but I did have [a coworker present who witnessed the incident (CW3: race not provided, female)] there and I had made a copy. I made the mistake of not emailing [S1] and confirming she read receipt [sic] the email. CW3 averred that “I was in the break room when [S1] gave [Complainant] the verbal OK for her doctor's appointment on February 22nd, 2017.” On appeal, Complainant contends that “annual or sick [leave] we could not put in the computer until after we return. If it was planned [annual leave] that was the only time, so it wouldn’t be in the computer before the dates she made me take the [annual leave].” With regard to the 14-day suspension, when asked whether or not she agreed with the charges in the Notice, Complainant simply responded “no” with no further elaboration. When asked how she responded to the charges in the Notice, Complainant provided a response that did not address the question. Following a review of the record we find that there is insufficient evidence in the record to establish that Complainant’s schedule was changed without notifying her. With regard to being charged with AWOL, while CW3 confirmed Complainant’s claim that S1 gave Complainant a “verbal OK” for her leave request, the Agency’s leave record does not show Complainant submitting a formal request prior to taking the leave. We further note that despite Complainant’s contention that sick leave requests could not be entered into the computerized system until after the fact, the Agency’s leave memorandum contradicts such a claim. Finally, with regard to the 14-day suspension, Complainant failed to rebut the Agency’s articulated reason for its action. Nor has Complainant shown that the Agency was motivated by discriminatory animus towards Complainant’s protected bases. 2020001223 8 Hostile Work Environment. We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when her tour of duty was changed without notifying her, S1 shared her medical information and details of EEO complaint with staff members, she was charged three hours of AWOL, and she was issued a written admonishment and suspended for 14 days, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant also alleges the following acts of harassment occurred: in October 2015, she was accused of making fun of deaf and blind patients; on January 11, 2016, one of her co-workers called Complainant a retard, dummy, and stupid; on January 6, 2016, S1 threatened Complainant with disciplinary action and reassignment if she did not complete her shift working alongside a specific nurse; in March 2016, S1 asked a subordinate employee if Complainant was "cancerous to the unit," and questioned employees about Complainant's workload; on April 5, 2016, she was accused of leaving her tour-of-duty without providing a report; between August 2016 and March 22, 2017, she was accused of being a troublemaker, forced to sign an agreement for rules to follow, accused of not spending enough time at the front desk, her work assignments were changed, and she was questioned about what time she left work; on September 15, 2016, she was forced to take eight hours of Annual Leave; and on November 25 and 27, 2016, she was denied Annual Leave. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, to prove her harassment 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 because of a protected basis - in this case, her race, sex or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, beyond her bare assertions, the evidence of record does not established that the alleged actions either involved or were based on Complainant’s race or sex, or the result of unlawful retaliatory animus. 2020001223 9 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we fid that Complainant has not shown that discrimination or reprisal occurred, and we AFFIRM the FAD. 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. 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. 2020001223 10 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 July 27, 2021 Date