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

Equal Employment Opportunity Commission

Mar 21, 2023

Appeal No. 2021005137 (E.E.O.C. Mar. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynnette M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021005137 Hearing No. 420-2020-00331X Agency No. 2003-0520-2020100255 DECISION On September 20, 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 August 18, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant worked as a Registered Nurse II/Assistant Nurse Manager at the Agency’s Gulf Coast Health Care System in Biloxi, Mississippi. Nurse Manager was her first level supervisor. Chief Nurse or, in Chief Nurse’s absence, Acting Chief Nurse was her second level supervisor. Report of Investigation (ROI) at 172. On January 21, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African American), religion (Jehovah's Witness), disability (lupus), and in reprisal for prior 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. 2021005137 2 protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. From January 2019 through January 2020, Chief Nurse and Nurse Manager failed to address Complainant’s complaints regarding co-workers’ unprofessional treatment toward her; 2. From January 20, 2019, through January 2020, Nurse Manager failed to provide proper job training to Complainant in her Assistant Nurse position; failed to take action against co-workers when they verbally assaulted, invaded her personal space and tossed items across the cart; and informed Complainant she could not issue discipline to subordinates; 3. On October 7, 2019, Nurse Manager denied Complainant’s request for reasonable accommodation for telework, flexible schedule, leave without pay (LWOP), desk and ergonomic chair and restructure of non-essential job functions; 4. On January 10, 2020, Complainant became aware Chief Nurse issued her a performance proficiency rating with negative comments and two ratings of satisfactory; 5. On March 12, 2020, Chief Nurse assigned the Complainant to work the DEMP tent (COVID-19) area to screen visitors and patients for COVID-19 without the Agency providing appropriate personal protective equipment;2 6. From April 22, 2020, to present, management officials failed to deny or approve Complainant’s weather and safety leave request; 7. On May 11, 2020, Complainant felt it was harassment when Acting Chief Nurse sent a group text message that stated, “FYI employees are getting frustrated with staff calling in;” and 8. On May 14, 2020, Nurse Manager and Acting Chief Nurse assigned Complainant to perform COVID-19 screenings at the Community Living Center in violation of her reasonable accommodation. In claim 1, Complainant stated that staff spoke to her in loud, aggressive tones and Nurse Manager did not address the treatment by her subordinates. Complainant expressed that the staff said they only answered to Nurse Manager. ROI at 179. Complainant said that Nurse Manager would make excuses when she brought issues to Nurse Manager of staff not following policy and procedures. ROI at 180. 2 The acronym DEMP was not clarified in the record. As noted in the claim, however, it was an area in which visitors were screened for COVID-19. 2021005137 3 Complainant further opined that Nurse Manager rarely had unit meetings while Complainant was Assistant Nurse Manager and, when Nurse Manager did hold such a meeting, Complainant was not invited. ROI at 180. Complainant opined that she believed the reason for this was that she was singled out based upon her protected class. ROI at 184. Complainant opined in claim 2 that Nurse Manager did not properly train her for her role as Assistant Nurse Manager. ROI at 182. Complainant averred that Nurse Manager only trained her to fill out the daily staffing sheet and the training took only a “couple of days.” ROI at 182. Nurse Manager countered that Complainant began her assignment working with three other Assistant Nurse Manager incumbents, and they trained Complainant in the duties and role expectations, which Complainant performed successfully. ROI at 224. Complainant related that Nurse Manager only met with Complainant because Chief Nurse required that Nurse Manager provide her proper training. ROI at 182. Nurse Manager stated that, at the request of Complainant, she performed one on one training with Complainant which was completed on August 6, 2019. ROI at 224. Complainant stated that when she asked Nurse Manager for more training, Nurse Manager responded that “[Complainant] was performing [her] job properly or would tell me to get with the other assistant nurse managers if I need help with anything. I would constantly have to ask the other assistant nurse managers how to perform my job duties.” ROI at 182. Nurse Manager relayed that Complainant would only ask if she was doing her job okay, to which Nurse Manager responded in the positive. ROI at 224. During the orientation, Nurse Manager and Complainant agreed to meet weekly, but Nurse Manager asserted that Complainant did not come to any of the meetings. ROI at 224. Between August 16, 2019, and November 1, 2019, Complainant missed eight scheduled meetings due to leave; she missed four of these meetings without notice and without providing a reason. ROI at 59. Nurse Manager also relayed that Complainant attended the Nurse Management retreat, which is a training session for nurse managers and assistant nurse managers. ROI at 224. Therefore, Nurse Manager denied that Complainant was not properly trained as alleged. Chief Nurse also disagreed that Complainant lacked adequate training. ROI at 211. Chief Nurse explained that Complainant had the same training checklist as all other Assistant Nurse Managers and that checklist was completed. ROI at 211. Chief Nurse relayed that she, herself, offered “many hours” of mentoring, listening to her, and giving her feedback. ROI at 217. Chief Nurse said that she asked Complainant to clarify and specify what she meant by not having adequate training and Complainant could not be specific or identify what she was lacking. ROI at 211. Rather, Complainant purportedly said that she and Nurse Manager were not getting along. ROI at 211. Complainant asserted that, in a February 2019 meeting, Nurse Manager stated that Complainant was not able to discipline any employees, because that was not part of the role of an Assistant Nurse Manager. ROI at 179, 184. Nurse Manager confirmed that her understanding of the position responsibilities was that Assistant Nurse Managers did not have the functional duty to issue disciplinary actions; in fact, Nurse Managers may only issue admonishments. ROI at 225. 2021005137 4 Complainant believed that the staff was “very resistant to directions and assignments[,] even at times refusing the assignment I gave.” ROI at 179. In response to claims 1 and 2, regarding the relationship between herself and Nurse Manager, Complainant stated: I was subjected to this unprofessional treatment because I was not treated as the other three assistant nurse managers who were Caucasian White Females. They were respected in their roles and where not subject to this treatment. Their Nurse Managers collaborated with them and supported them in their roles. These women could do their job and not be subject to this type of hostile and harassing treatment from the staff they managed. The staff I managed was predominately African American and I was expected by [Nurse Manager] to play the “Black Homegirl Role” and turn a blind eye to the wrongdoing of the staff. ROI at 180. Complainant asserted that she addressed these concerns with Nurse Manager but was unsuccessful in obtaining assistance. ROI at 181. Complainant averred that, when she asked for assistance from Nurse Manager, Nurse Manager replied, “stop reporting everything to her and to put on my big girl panty. She also stated to me on several occasions even in meeting with [Chief Nurse] that [Nurse Manager] could not control how the staff responds to me.” ROI at 181. Chief Nurse, however, asserted that she had numerous conversations with Complainant about commanding versus demanding respect; she told Complainant that the only way she would earn their respect was to act as a leader that provided them respect, support, and professionalism, as opposed to behaving like a dictator. ROI at 211. On September 3, 2019, Licensed Practical Nurse (LPN), Complainant’s subordinate, submitted a Report of Contact (Contact) to Nurse Manager concerning several distinct and uncomfortable interactions with Complainant. ROI at 98. The incidents were on January 21, 30, and 31, April 5, and August 29, 2019. ROI at 98. Each of these events were instances, relayed by LPN, in which Complainant was the aggressor toward staff and the staff relayed that Complainant was unprofessional and disrespectful toward them. ROI at 98-9. Chief Nurse said she requested a report of contact from both Complainant and the nurses who reported that Complainant was harassing them. ROI at 210. Chief Nurse believed Nurse Manager conducted a fact finding and that mediation was requested by all parties. ROI at 210. Chief Nurse recommended a mediation between Complainant, Nurse Manager, and LPN, which was conducted on September 9, 2019. ROI at 185, 210, 291. Complainant found this mediation to be ineffective. ROI at 185. Nurse Manager believed that the situation was resolved at the end of the mediation. ROI at 223. 2021005137 5 Concerning the allegations in claim 3, Complainant submitted a request for a reasonable accommodation on October 4, 2019.ROI at 177. Complainant’s requested reasonable accommodation included work from home remotely/full-time telecommute, a flexible schedule, allow time off for doctor’s appointments, and “restructuring of marginal non-essential job functions.”3 ROI at 60, 185. To further her ability to work from home, Complainant further requested that the Agency provide her with: computer equipment, adjustable ergonomic chair, adjustable ergonomic desk, and alternative communication capabilities for virtual meeting attendance (instant messaging, texting telephone and emails). ROI at 60. Chief Nurse stated that she made Acting Deputy aware of Complainant’s request for a reasonable accommodation. ROI at 212. Acting Deputy explained to Chief Nurse that the Agency could not accommodate an Assistant Nurse Manager working from home and, they believed the Agency had a signed waiver that indicated their positions were not available for telework. ROI at 212. On October 7, 2019, Complainant’s requested accommodation was denied by Nurse Manager. ROI at 60-1. Nurse Manager asserted three reasons for the denial of Complainant’s requested accommodation: (1) the accommodation would require the removal of an essential job function, (2) the accommodation would require lowering of a performance standard or production standard, and (3) the accommodation would cause an undue hardship to the operation of the unit. ROI at 60. Nurse Manager specified that 50% of Complainant’s job was to be performed physically working on assigned units. ROI at 61. The other 50% of the time, Complainant’s job required administrative functioning, which included: staffing, addressing staff issues, unit monitoring, survey readiness, environmental rounding, conflict resolution, staff meetings, and unit coverage in the event that the Nurse Manager was absent. ROI at 61. Complainant concurred that most of her work was unit work, and she was on each unit daily performing her duties. ROI at 189. Nurse Manager explained that no other accommodation was offered because Complainant “only expressed interest in working remotely.” ROI at 213. Further, once the requested accommodation was denied, Complainant was offered the option to be reassigned to a different position as an accommodation, to a lower paying position per Complainant, which Complainant declined without specific reason. ROI at 60, 186, 226. Nurse Manager said that Complainant’s desire to work remotely made it impossible to place her in a nursing position because “[t]here was no other job function available for her to work from home in nursing.” ROI at 213. Complainant stated that, in her performance appraisal, as alleged in claim 4, she received an overall rating of “satisfactory.” She also said that her rating in “Interpersonal Relationships” was “satisfactory.” ROI at 188. Complainant relayed that her performance review specified that there were challenges that were met with building a professional relationship between Complainant and the staff; this relationship building was made a goal for the next appraisal period. ROI at 188. Complainant disagreed with the rating because she performed her job to the best of her ability “with the poor training [she] received from [Nurse Manager].” 3 Although requested as a reasonable accommodation, the record does not provide evidence or definition of Complainant’s definition or delineation of what “non-essential job function” entails. 2021005137 6 ROI at 189. She reported that Nurse Manager told her she was doing a great job. ROI at 189. She argued that she had never received an overall rating of lower than “high satisfactory.” ROI at 189. Complainant offered that she believed her rating was discriminatory because she had been out sick “a lot” due to her disability and that Chief Nurse did not want her in her position because she missed work due to her illness. ROI at 190. Nurse Manager recounted that when Complainant expressed dissatisfaction in her performance review, Nurse Manager explained to Complainant that Complainant was new to the role and was learning her new job responsibilities. ROI at 228. Nurse Manager noted that Complainant did not complete the 50% clinical portion of her duties. ROI at 231. Nurse Manager explained areas that needed improvement, but that satisfactory meant that she was learning and doing her job according to the role of Assistant Nurse Manager. ROI at 228. In claim 5, on March 12, 2020, Complainant was assigned to work in a DEMP tent which was defined as an area to screen visitors and patients for COVID-19. ROI at 191. Chief Nurse explained that she sent an email to all Nurse Managers and Assistant Nurse Managers to work in the DEMP tents, assigning each person a specific date and time. ROI at 215. Complainant, along with everyone else assigned to work in the DEMP tent, was reportedly told that they would not be able to use masks due to a national shortage of personal protective equipment. ROI at 191. Complainant believed that the assignment was discriminatory because she informed Chief Nurse that she was immunocompromised, and this placed her at a higher risk than others. ROI at 192. Nurse Manager said that she offered to work Complainant’s DEMP shift and did so. ROI at 231. On March 18, 2020, upon request from Complainant with appropriate documentation, Nurse Manager approved the reasonable accommodation request excusing Complainant from working in either the DEMP tent or in other areas deemed “COVID-19 areas.” ROI at 199, 215, 320. On April 22, 2020, as alleged in claim 6, Complainant requested weather and safety leave from Nurse Manager. ROI at 196-7, 302. Complainant utilized FMLA for her lupus and, Nurse Manager informed her that, as of October 15, 2019, Complainant would exhaust her 480 hours of FMLA. ROI at 94. Complainant requested weather and safety leave due to the exhaustion of her FMLA. ROI at 197.Nurse Manager forwarded Complainant’s request to leadership because Nurse Manager could not approve or deny the request in her role. ROI at 197, 234, 241. Complainant followed up with Acting Chief Nurse, whom Complainant related did not respond to her. ROI at 197. Acting Chief Nurse stated that the weather and safety leave is not an entitlement, and the final approval or denial was not hers to make. ROI at 253. Acting Chief Nurse explained that as of May 4, 2020, the request was with the Director, pending review. ROI at 248. Complainant medically retired on May 23, 2020, before a final decision could be made as to approval or denial of her weather and safety leave request. ROI at 220, 248. On May 11, 2020, regarding claim 7, Complainant relayed that she was sick due to her lupus, and she called in sick to work. ROI at 197. She said she received a text on her personal cellular phone from Acting Nurse Chief that stated: “FYI employees are really getting frustrated with staff calling in.” ROI at 197. 2021005137 7 Complainant stated that she believed that this text was directed at her, as she had been absent for five weeks due to her lupus. ROI at 197-8. Complainant conceded that the text was sent to the entire management team. ROI at 197. On May 14, 2020, as alleged in claim 8, Complainant was assigned to perform COVID-19 screening in the Community Living Center. ROI at 199. Nurse Manager reportedly told Complainant that she was the only Assistant Nurse Manager who had not performed this task. ROI at 199. Complainant averred that she emailed Nurse Manager and Acting Chief Nurse, reminding them of the accommodation to not work in the DEMP tent or other areas deemed to be COVID-19 areas. ROI at 199. Complainant said that, initially, Nurse Manager excused her from the task. Acting Chief Nurse explained, via email, that the approved reasonable accommodation did not limit Complainant from working in the Community Living Center Communities, because the Communities were a low risk for COVID-19, due to decreased foot traffic and screening measures that were taken. ROI at 199. Complainant stated she “[felt] this assignment was retaliation from Acting Chief Nurse…because I asked for clarification regarding the assignment for COVID-19 screening because it violated my reasonable accommodation.” ROI at 199, 200. Nurse Manager explained that the Community involved was an area in which all employees and residents had been tested, and no outside visitors were allowed at the relevant time. ROI at 237. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 5, 2021, motion for a decision without a hearing and issued a decision without a hearing on August 12, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that several comments were made regarding her disability, such as being told to “stop acting disabled” when she performed her position successfully after her reasonable accommodation was denied. Complainant alleges that management was “looking for a reason to get rid of [her] from her position.” Complainant states that the Agency did not give her the same training as they did Caucasian employees in her same position. Finally, Complainant attests that the Agency did not adequately address the behavior of her subordinates. In reply, the Agency proffers that Complainant has not met her burden of proof that she was subjected to a hostile work environment based upon any of her asserted protected class and requests that the decision to adopt the AJ’s order be upheld. 2021005137 8 ANALYSIS AND FINDINGS Standard of Review 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. (Aug. 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). 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 to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Reasonable Accommodation-Claims 3, 5, and 8 An agency must make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A qualified individual with a disability is an “individual with a disability” who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) (“the word ‘accommodation’. . . conveys the need for effectiveness”). That is, a reasonable accommodation should provide the individual with a disability with “an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability.” 29 C.F.R. pt. 6130 app. § 1630.9. If more than one accommodation will enable an individual to perform the essential functions of his or her position, “the preference of the individual with a disability should be given primary consideration. 2021005137 9 However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” Id.; see Goodman v. U.S. Postal Serv., EEOC Appeal No. 0120044371 (May 2, 2007). “The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability.” 29 C.F.R. pt. 1630 app. § 1630.9. Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. § 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at § 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at § I630.2(n)(3). An agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision, we assume that Complainant is an individual with a disability. Complainant requested a reasonable accommodation in the form of remote work/full-time telework, with equipment and furniture for her home; flexible scheduling; time off for her appointments; and “restructuring of marginal non-essential job functions” which was undefined in the record. The Agency denied the accommodation requested because Complainant’s position was not compatible with telework for all of Complainant’s essential job functions were required to be on site. The evidence demonstrates that Complainant’s position required half of her time be devoted to direct hands-on patient care, which was located in the facility. The other 50% of Complainant’s position was administrative. The Agency indicated that administrative duties included staffing, on-site safety checks, and survey preparedness. As such, these administrative duties also required that Complainant be present in the facility. Therefore, upon review, we find that full-time telework would not allow Complainant to perform the essential functions of her job. As such, we find that her requested accommodation was not effective, and the Agency was not in violation of the Rehabilitation Act in denying her full-time telework. As Complainant’s telework request was not effective, all requested equipment to enable such remote work was rendered moot. Complainant has not proffered any evidence of being denied leave, nor has she provided evidence of a requested schedule that she was denied. In fact, Nurse Manager explained that no alternative accommodation was offered because Complainant was only willing to discuss telework. 2021005137 10 The discussion of “qualified” does not end at Complainant's position of record. The term “qualified,” with respect to employment is defined as a disabled person who, with or without reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. In this case, the Agency offered Complainant a reassignment and she declined the offer. Complainant does not assert that she was unable to perform the alternative position, only that the pay was lower. The Commission has held that, when a comparable position is unavailable or unsuitable, reassignment to a position of lower paid position is a permissible reassignment. See Comerford v. Dep’t of the Navy, EEOC Appeal No. 01A44524 (July 21, 2006). In this case, the evidence demonstrates that there were no nursing positions available that would be compatible with Complainant’s requested remote work accommodation. Therefore, reassignment to a lower paying position is a permissible reassignment. Complainant declined this assignment, however. Therefore, we conclude that Complainant failed to show that the Agency violated the Rehabilitation Act with respect to claim 3. As to claim 5, all people in the positions of Nurse Manager and Assistant Nurse Manager were assigned to work in the DEMP tent. However, Nurse Manager excused Complainant from working in the DEMP tent or in other areas deemed “COVID-19 areas. In fact, Nurse Manager offered to work Complainant’s assignment in the DEMP tent and did so. Therefore, Complainant did not work in the DEMP tent, and she failed to show she was denied a reasonable accommodation. As to claim 8, Complainant was assigned to perform COVID-19 screens in the Community Living Center. Complainant asserts that this was in violation of her reasonable accommodation of being excused from working in designated COVID-19 areas, signed March 18, 2020, by Nurse Manager. Complainant averred that on May 14, 2020, she was informed that management assigned her to perform COVID-19 screening in the Community Living Center the next day from 7am to 2pm. She emailed management asking for clarification on this assignment at 1:31 pm and management responded to her verbally around 2:00 pm. Management informed her that she was excused from the COVID-19 screening assignment. Furthermore, the parties stipulated before the AJ that “On May 14, 2020, the Agency excused Ms. Craft from performing screening in the CLC which was scheduled for May 15, 2020.” Joint Stipulation (Jan. 4, 2021). Therefore, the record does not indicate that Complainant in fact performed COVID-19 screening in violation of her medical restrictions on May 15, 2020, as alleged in claim 8. We also note that Complainant has not indicated that she was assigned COVID-19 screening after that date until she retired effective May 23, 2020. Thus, we conclude that Complainant failed to demonstrate that the Agency violated the Rehabilitation Act as alleged in claim 8. 2021005137 11 Disparate Treatment-Claims 1, 2, 4, 6, and 7 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. 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. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming Complainant has established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the Agency asserted that they did attempt to address what Complainant described as her co-workers’ unprofessional treatment toward her. Nurse Manager answered a phone call from Complainant, while Nurse Manager was on leave, concerning an incident on August 29, 2019, and asked Complainant to submit something to her in writing, which Complainant did not do. Chief Nurse asserted that Complainant did not notify her of a problem with the staff until after the staff had spoken to Chief Nurse about issues with Complainant. A mediation was performed between the parties to attempt to seek a resolution. Chief Nurse offered assistance in the form of coaching and leadership assistance to attempt to build trust between Complainant and the staff. Therefore, we find that the Agency has shown that it attempted to address the issues Complainant had with her staff. As to claim 2, the record indicates that Complainant had the same orientation check list as the other assistant nurse managers. Nurse Manager stated that Complainant had incumbent assistant nurse managers to help her orient, that she went through a one-on-one orientation with Complainant, and Nurse Manager followed up with a post-orientation email on August 7, 2019, clarifying expectations of the position. Chief Nurse offered advice and training. Complainant went to a Nurse Management retreat, in which the entire focus was training. When Chief Nurse asked for Complainant to specify what she was not trained on, Chief Nurse averred that Complainant could not provide specific information. Also alleged in claim 2, Complainant asserted that she could not issue disciplinary actions against subordinates. Nurse Manager explained that it was not within the purview of incumbents of the Assistant Nurse Manager position. In fact, Nurse Manager affirmed that she, herself, could not issue anything greater than an admonishment. Regarding claim 4, Nurse Manager stated that Complainant received a satisfactory rating. Nurse Manager asserted that this meant that Complainant was performing her job satisfactorily, but there were areas that needed improvement. In this case, she needed improvement in interpersonal relations. 2021005137 12 Nurse Manager and Chief Nurse both had conversations with Complainant about improving communication with the staff to improve relationships between Complainant and staff. Concerning claim 6, the Agency indicated that Complainant retired before the proper channels could determine guidance on whether her request for weather and safety leave should be approved or denied. Finally, as to claim 7, this was a general text stating, “FYI employees are really getting frustrated with staff calling in,” sent by Acting Chief Nurse to all of nursing management and not directed at Complainant alone. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted based on discriminatory or retaliatory animus. The focus of a pretext analysis is on whether the Agency’s actions were motivated by discriminatory animus. A complainant cannot establish the existence of pretext merely by asserting that a decision was arbitrary, unfair, a mistake, or an error in judgment. Nor is it enough for complainant to disagree with or question the Agency’s actions. A complainant must show that discrimination was the real reason for the Agency’s actions. Here, Complainant simply does not provide evidence of discrimination or pretext. A complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry v. Dep’t of Hous. and Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). 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). Rather, the focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. At all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Complainant has failed in this regard. Furthermore, to the extent that Complainant is alleging that she was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on our finding that she failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2021005137 13 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. 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). 2021005137 14 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 March 21, 2023 Date