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

Equal Employment Opportunity Commission

Dec 16, 2021

Appeal No. 2020004374 (E.E.O.C. Dec. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathy D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004374 Hearing Nos. 520-2017-00114X; 520-2018-00353X Agency Nos. 200H-0620-2016100703; 200H-0620-2017-104898; 200H-0620-2019-104246 DECISION On July 29, 2020, 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 July 10, 2020 final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to these complaints, Complainant worked as a Registered Nurse Supervisor, Nurse III, at the Agency’s Hudson Valley Health Care System in Castle Point, New York. On February 24, 2016, Complainant filed an EEO complaint (Agency No. 200H-0620-2016- 100703) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American) and national origin (Nigerian) when: 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. 2020004374 2 1. On August 18, 2015, Complainant was issued a proposed five-day suspension; 2. From October 30, 2015 to November 3, 2015, Complainant was suspended from duty; 3. On November 7 - 8, 2015, Complainant’s tour of duty was changed; 4. On January 31, 2016, Complainant was intimidated and yelled at by a Nurse (N1) who informed the Associate Chief Nurse, who blamed Complainant for the confrontation; and 5. Between February and June of 2015, the Agency continuously accepted, condoned, and approved actions of N1 against Complainant and, although informed, management has not taken any action against N1. On December 5, 2017, Complainant filed a second EEO complaint (Agency No. 200H-0620- 2017-104898) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race, national origin, and in reprisal for prior protected EEO activity when: 1. On July 15, 2017, the Nurse Supervisor charged Complainant absent without leave (AWOL) from 3:30 p.m. to 12:00 a.m.; 2. On July 17, 2017, the Nurse Supervisor issued a memorandum confirming that Complainant had been charged AWOL, would not be paid, and threatened Complainant with possible disciplinary action; 3. On August 1, 2017, the Nurse Supervisor forwarded Complainant’s personal email to all of Complainant’s colleagues to read; 4. On August 19, 2017, the Nurse Supervisor asked Complainant to work at the Montrose Campus of the facility and changed Complainant’s schedule from the day shift to the evening shift; 5. On August 19, 2017, the Nurse Supervisor made a derogatory remark, stating “If you are a mature woman as you said you are, I want you to go to Montrose.” Complainant stated that this was after she had already arrived to work and had already started taking care of patients; 6. On August 27, 2017, the Nurse Supervisor changed Complainant’s schedule from the evening shift to the night shift to accommodate a staff member from a different department, without communicating the change to Complainant; 7. On August 31, 2017, the Nurse Supervisor accused Complainant of being angry with him, because he changed her schedule to accommodate someone else; 8. In August 2017, upon Complainant’s return from vacation, she became aware that the Nurse Supervisor changed her schedule after it was posted; 9. On September 4, 2017, the Nurse Supervisor changed Complainant’s shift after Complainant did her self-scheduling; 10. During November 2017, Complainant was charged 104 hours Leave without Pay (LWOP) and 32 hours AWOL; 11. In a letter dated November 21, 2017, Complainant was issued a Proposed Reprimand; and 12. In a letter dated December 8, 2017, Complainant was issued a reprimand. 2020004374 3 On July 25, 2019, Complainant filed a third formal EEO complaint (Agency No. 200H-0620- 2019-104246) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race, national origin, and in reprisal for prior protected EEO activity when: 1. From May 2019 to June 2019 she was subjected to a hostile work environment with respect to (a) being marked LWOP; and (b) being marked AWOL; 2. From May 23 - 29, 2019, Complainant was made to work seven consecutive days, while working different shifts at different locations; and 3. On June 15 and 16, 2019, Complainant’s duty hours were changed from day shift to evening shift, which prevented her from earning the evening shift pay differential. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings. The complaints were consolidated. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues the record is not ripe for summary disposition. She says there are issues of credibility warranting a hearing. She says the AJ erred in finding she failed to establish the necessary inferences and says there is a record of hostility towards her national origin. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2020004374 4 In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant failed to establish such a dispute. She did not show evidence that the named management officials in these matters harbored discriminatory or retaliatory animus. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2020004374 5 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 December 16, 2021 Date