[Redacted], Matt B., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 9, 2023

Appeal No. 2022002050 (E.E.O.C. Mar. 9, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022002050 Hearing No. 541-2020-00003X Agency No. ARCARSON19APR01169 DECISION 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 March 3, 2022 final decision concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Clinical Nurse (Psychiatric), GS-0610-11, at the Agency’s Medical Department Activity, Department of Behavioral Health, at Fort Carson in Colorado. Complainant was working under a Career- Conditional Appointment, which required him to serve a two-year probationary period. On April 23, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male) and age (56) 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. 2022002050 2 1. the Captain (Captain) interrupted Complainant’s new employee orientation and nursing specific duties training requirements and directed him to complete training by specific timeline; 2. Captain directed Complainant not to wear jeans while other co-workers were allowed to wear jeans; 3. Captain routinely changed Complainant’s duty schedule to allow co-workers to attend routine college classes; 4. Captain did not staff Complainant’s night shift to meet patient ratios; 5. Captain waited 14 months to inform Complainant that he was using an incorrect duty status code; 6. Captain accused Complainant of not completing “Peer Review Audits” and waited 16 months to inform Complainant he was not in compliance; 7. Captain accused Complainant of not completing patient assessments within the timeframe requirements; 8. Captain would not communicate or avoided communicating with Complainant; 9. Captain accused Complainant of violating patient safety and care; 10. On November 28, 2018, Captain intimidated Complainant by standing over him and began ranting and waving his arms and stated in a high tone of voice, “what do you want me to do, I’ve been working all day, there’s a lot going on.” Also, Captain suggested Complainant had attacked him at a staff meeting when Complainant expressed concerns for not staffing the night shift; 11. On January 29, 2019, Complainant informed the Major (Major) of Captain’s intimidating behavior and Major took no action; 12. On February 7, 2019, Captain ignored Complainant’s request to volunteer as an Infection Control Coordinator; and 13. On March 8, 2019, Captain issued Complainant a Memorandum of Termination during his probationary period. In the Termination Notice raised in Claim (13), Captain, based on the actions raised in Claims (4), (5), (6), (7), and (9), found Complainant failed to demonstrate his fitness for continued performance. Complainant argued that he did not receive any prior discipline or any notice that his performance was deficient prior to his termination and that he was not given a chance to remedy these deficiencies. In his affidavit, Complainant generally confirmed his allegations and argued that he was discriminated against on the basis of his age because he is the oldest male nurse in the department. In support, Complainant refers to a conversation he had with Captain early in his tenure. In reference to Complainant not managing his schedule at an appropriate pace, Captain said, “anyway, I have a learning tool I will give you.” Complainant took this to mean that he was slow. Complainant notes, in Claim (1), that Captain said, “I really need to get you oriented on the floor.” In his testimony, Captain explained that the Agency was using a new orientation format “that was not time-based but competency based.” 2022002050 3 Regardless, Captain denied Complainant’s allegations, but added that “if his computer training was interrupted, it would be for other mandatory training to occur.” In Claim (2), Complainant contended that the Captain, on one occasion, told him not to wear jeans but that Complainant worked with a younger nurse (CW1) who frequently wore jeans. Captain testified that if employees were off-duty and came to the back area, jeans would be permissible. However, they cannot conduct patient care wearing jeans. To the extent any employee wore jeans while administering patient care, Captain said it was done without his knowledge. Captain noted that CW1 only worked a short time with the Agency. Regarding Claim (3), Complainant alleged that, for the months of July and August, he was on-call for all four of his three-day weekends, but CW1 was not placed on call for any of his three-day weekends. Further, in September 2018, Complainant was on-call three times in two weeks, but CW1 was on call only once. Complainant did not further discuss any other employee’s on-call schedule. Captain denied changing a posted schedule “to accommodate someone else’s schedule without their knowledge and consent.” Further, CW1 ended his employment with the Agency because Captain would not change the schedule to accommodate his needs. Complainant discussed Claim (4) in depth, explaining that the Agency’s standard operating procedure recommends a minimum of four staff members with two registered nurses for a high census, defined to mean 8 to 14 patients. However, Complainant’s shift on November 28, 2018, had only three staff members. This led to Complainant’s allegation in Claim (10). Complainant elaborated that Captain said that there were only three people scheduled for the shift, but one person called off, and the on-call nurse came in to replace that staff member. Complainant argued that the shift was still short staffed, leading to unsafe patient care. Captain explained that, on November 28, 2018, Complainant was refusing to come in for his scheduled shift. Two other employees had already called off, and Captain had called in another employee to assist. Further, Captain had covered the preceding shift because another employee called out. They “exhausted all other options and had no other personnel to call in for that particular shift. That night had three RNs on, plus additional assistance from” Captain and another employee. Captain acknowledged the recommended staffing levels, but maintained that they were recommendations only. The minimum staffing level was no less than three nursing staff, which they had. Major affirmed that the staffing ratios were recommendations only and added that the unit has gone through staffing issues for some time; “with a fixed number of staff we are unable to increase the numbers if we don’t have them.” In Claim (5), Complainant contended that Captain did not have an issue with the codes Complainant used in his timesheet until after Complainant complained of disparate treatment. Complainant acknowledged that other employees were also notified that they were using the incorrect codes. However, Complainant asserted that these employees were not terminated, whereas he was. Captain responded that several employees had difficulties with entering the appropriate codes for their timesheet. Major added that it was not a serious issue and a matter of making corrections. 2022002050 4 Regarding Claim (6), Complainant referred to a memorandum dated March 8, 2019, which warned Complainant that he had not provided Peer Review Audit for the month of February as instructed. However, Complainant said that he was only told to complete the February audit via an email on March 6, 2019, two days prior. Captain explained that Complainant was refusing to complete the audits until it was in his job description. However, all nurses were directed to complete the audits, and Complainant was the only one who did not. Another captain, who was the staff nurse in charge of ensuring that audits were performed (Staff RN) explained that an email would be sent in a certain month to notify nurses that audits needed to be performed for the preceding month’s patient charts. Therefore, the email she sent in March 2019, concerned February patient charts, whereas Complainant had failed to perform audits in February 2019, which concerned January 2019 patient charts. Staff RN provided a copy of the email dated March 6, 2019, which corroborates her testimony. Staff Nurse also provided an email dated February 18, 2019, in which she informs Captain that she is missing Complainant’s peer review audit for the January 2019 patient charts. In Claim (7), the Agency said that Complainant failed to complete the admission of a patient within 24 hours of the patient’s arrival at the facility. Complainant objected that he twice inherited a patient that had arrived during the prior shift, but the nurses on the prior shift had not completed any documentation. Complainant further explained that the patient was very tired and wanted to sleep, so he believed the assessment could have been completed after the patient woke up. Therefore, he should not have been penalized for not completing documentation on this patient. Captain explained that Complainant had “ample time to, at the very least, document that the patient refused to complete any paperwork or assessments. Documentation was not started for this patient even though there were five hours in which to complete it.” Captain distinguished this situation from the others in that these situations had a proper handoff take place. In Claim (8), Complainant broadly alleged that Captain refused to talk to him; Captain would talk to most of the other employees at the nursing station but would never inquire anything of Complainant. As noted above, Complainant alleged Captain’s actions were because Complainant was the oldest male nurse in the facility. Captain disagreed with Complainant’s perspective and asserted that it was Complainant who would not communicate with him. Claim (9) referred to an incident identified in Complainant’s termination notice. As described therein, on February 22, 2019, Complainant had a patient who was characterized as “high acuity” - unpredictable and assaultive. Complainant allowed the patient to retain a plastic hair clip, and gave a patient a “teddy bear.” Complainant objected that he did not perform the skin check of the patient because it was a woman, so he could not be aware of the hair clip. Complainant also said that he allowed a patient to keep a teddy bear because it calmed the patient down. He said he was not told that the teddy bear was a restricted object. Further, Complainant cited to other actions in which a nurse left a pair of scissors in a new patient’s hygiene bin and another male nurse walked into a female patient’s room, but neither employee was disciplined. 2022002050 5 Captain said that he received three witness statements that caused him to take action. “The first night of the occurrence, the two RNs informed him, and the patient, that these were violations. The second night, I was informed, the patient had told the Complainant that she could not have the bear and he proceeded to give it to her. The third witness saw him collecting it prior to the rest of the shift’s arrival.” Captain disputed Complainant’s assertions regarding other nurses. As to the scissors, Captain said that Complainant told him he was unsure who left the scissors in the bin. As a result, Captain could not discipline anyone. Further, to Captain’s knowledge, a report was written regarding the incident in which a male nurse walked into a female patient’s room, and appropriate guidance was provided from leadership. Staff RN added that the presence of the teddy bear constituted an infection control risk and should not have been given to the patient. Complainant alleged that he reported Captain’s actions, as alleged in Claim (10), to Major on January 29, 2019. According to Complainant, Major was sympathetic to Complainant’s account and made assurances that Complainant’s concerns would be addressed. However, Complainant said he continued to be subjected to Captain’s behavior. Captain said he was unaware what Complainant and Major discussed. Captain noted that Major passed on Complainant’s concerns about staffing ratios, but said any changes would take time because “this required more staff than hiring actions existed for. Unfortunately the hiring process is not quick and can take months before new personnel set foot in an organization.” In Claim (12), Complainant asserted that he responded to Captain’s request for volunteers, but Captain said that he already had enough volunteers. Captain denied that Complainant volunteered but noted that Complainant was assigned to the task. A Psychology Technician provided an affidavit for the record and averred that other nurses appeared to have a problem with Complainant because Complainant’s pace of work appeared to be slow. She was also using the incorrect code on her timesheet and was told to correct the codes 14 months after doing so. The Technician observed several employees wearing jeans in the workplace, and that CW1 told her that he was not aware that jeans were not allowed. In response, Captain explained that Complainant’s conduct “had degraded over the course of several months.” Further, he “was informed by personnel that worked with him that he would constantly complain about policy and procedure, other staff, and leadership.” Captain noted that Complainant’s attitude extended through his response to the termination letter, “where he slammed his badge on the desk (breaking it apart), slamm[ed] door to the room open that resulted in a hole in the wall, calling [Captain] a ‘little punk’ and a ‘bitch’ in front of security and HR personnel before being escorted to his locker by security.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. 2022002050 6 Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant continued to argue that Captain incorrectly characterized the events at issue, and asserts that he had a reason for each event. For example, as to the teddy bear, Complainant argues that the on-call provider approved the teddy bear, and that he had already inspected the teddy bear for any safety concerns. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). As more fully articulated above, Agency management proffered legitimate, non-discriminatory reasons for each claim. Complainant was using a new orientation format that focused on his competency, not on time. Therefore, Captain needed Complainant to perform other training at the time. In Claim (2), Captain explained that jeans were against workplace policy when administering patient care and he was unaware of other employees who violated the rule. Captain explained that the work schedule could not be changed to accommodate CW1’s academic schedule in Claim (3), and CW1 left the Agency shortly thereafter. 2022002050 7 In the Termination Notice in Claim (13), Captain identifies several events in support that Complainant claims to be discriminatory and Captain explains the circumstances giving rise to these events. The staffing ratio, at issue in Claim (4), was a recommendation and Captain staffed Complainant’s shift with the maximum available staff given the Agency’s number of employees and other employees’ work schedules, but Complainant still refused to work. In Claim (5), several employees had issues with using the proper codes on their timesheets, not just Complainant; the Major indicated it was a minor issue that simply needed to be corrected. And in Claim (6), Captain and Staff RN explained that Complainant was the only employee who failed to complete the patient chart audit for the month of January, which were due in February and raised in Claim (7). Complainant also improperly allowed a patient to retain a plastic hair clip, which was a safety issue, and allowed another patient a teddy bear, which posed an infection risk. Both were at issue in Claim (9). In Claim (12), Captain explained that he simply had enough volunteers. Finally, as discussed above, ultimately, Complainant was terminated because he failed to demonstrate fitness for continued federal employment based on his failure to show the responsibility and dependability necessary for continued employment. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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 on the basis of discriminatory animus. Complainant does not carry his burden. Complainant’s arguments consist of disagreements with Captain over how the department should be run but he does not acknowledge Captain’s arguments as to the limitations under which the department was operating. Although the Psychology Technician corroborated Complainant’s contention that several other employees wore jeans in the workplace, her testimony is insufficient to find pretext; the Technician does not indicate whether any supervisor was aware of the employees’ actions or whether Complainant was singled out for wearing jeans. Moreover, Complainant’s argument that Captain said his work was slow does not, without more, demonstrate that Captain acted based on Complainant’s sex or age. As Complainant withdrew his hearing request, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. 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 on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. 2022002050 8 Hostile Work Environment To establish a hostile work environment claim, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove his harassment claim, Complainant must establish that he 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, because of his sex or age. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. We note that the antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Furthermore, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency’s actions were based on discriminatory animus. The evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or a hostile work environment as alleged. 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. 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. 2022002050 9 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). 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. 2022002050 10 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 9, 2023 Date