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

Equal Employment Opportunity Commission

Sep 12, 2022

Appeal No. 2021005160 (E.E.O.C. Sep. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nadine R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021005160 Hearing No. 530-2018-00216X Agency No. 200H-0646-2015102685 DECISION On September 23, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 24, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Complainant worked as a Registered Nurse, VN-1, at the Agency’s Healthcare System in Pittsburgh, Pennsylvania. On June 16, 2015, Complainant filed a formal complaint alleging that the Agency2 discriminated against her and subjected her to a hostile work environment on the bases of race (Caucasian), sex (female), disability (anxiety disorder), and age (53) 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. 2 The individuals Complainant identified in her complaint included the following responsible management officials: • RMO1 - Associate Chief Nurse for Patient Care. • RMO2 - Nurse Manager • RMO3 - Human Resources Specialist and Reasonable Accommodation Coordinator • RMO4 - Second Nurse Manager 2021005160 2 a. From May 6, 2014 until May 13, 2015, the Agency failed to provide Complainant with a reasonable accommodation; b. On June 8, 2014, RMO10 reassigned Complainant to the Geriatric Psychiatry Unit; c. From July 14, 2014 to May 13, 2015, RMO8 failed to respond to Complainant’s report of a coworker’s (CW1) false statements about her; d. On October 28, 2014, RMO9 requested that Complainant submit a copy of the Indiana University of Pennsylvania Counselor’s letter; e. In October and November 2014, the Agency refused to accept documentation that Complainant submitted in support of her reasonable accommodation request; f. On November 4, 2014, RMO3 emailed Complainant stating that he needed additional medical documentation to support Complainant’s request for reasonable accommodation; g. On November 10, 2014, management dismissed Complainant’s report of a patient assault and instructed her not to be seen by Occupational Health, to go to the emergency room or to report the injury under Department of Labor - Office of Workers’ Compensation Programs guidelines; h. On January 14, 2015, RMO8 and RMO1 notified Complainant that she had been placed in a “light duty status” and would be temporarily reassigned to Hero’s Hall, effective January 20, 2015; i. On February 20, 2015, RMO8 conducted a fact-finding investigation into Complainant’s actions; j. On March 6, 2015, RMO4 conducted a second fact-finding into Complainant’s actions; k. On March 8, 2015, RMO1 ordered Complainant to complete her portion of her proficiency, allowing her fewer than eight hours rather than the usual three-to-four weeks allowed other nursing staff; • RMO5 - Associate Chief Nurse for Primary Care • RMO6 - Chief Medical Officer • RMO7 - Associate Director for Patient Care • RMO8 - Third Nurse Manager • RMO9 - Executive Vice President of the Union Local • RMO10 - Human Resources Officer 2021005160 3 l. On March 10, 2015, RMO1 issued Complainant an unsatisfactory proficiency review; m. On March 10, 2015, Complainant learned that she had been placed in a non-Title 38 role as a telephone dispatcher; n. On April 8, 2015, RMO5 convened the Professional Standards Board to conduct a probationary review of Complainant; o. On April 15, 2015, RMO3 denied Complainant’s request for reassignment and told her that she could apply and compete for a position; p. On May 16, RMO3 informed Complainant that it had fulfilled its legal obligations regarding her reasonable accommodation and denied that the Agency had received adequate medical documentation regarding her restrictions; and q. Effective May 13, 2015, Complainant was separated during her probationary period as a Staff Nurse. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination as alleged. The Agency issued a final order fully adopting the AJ’s decision. This appeal followed. In her notice of appeal, Complainant expressed her belief that the AJ did not review all of the facts; however, she did not otherwise submit a brief or statement in support of her appeal. 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). 2021005160 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 to produce evidence to support a finding that the agency was motivated by discriminatory animus. Denial of Reasonable Accommodation We begin with Complainant’s failure to accommodate claim, which is encompassed in allegations (a), (b), (d), (e), (f), (h), (m), (o), and (p). An Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In order to raise a genuine issue of material fact as to whether she was denied a reasonable accommodation, Complainant raise an inference that: (1) she is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation for her disability. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). Here, we find that Complainant is an individual with a disability by virtue of having been diagnosed with anxiety disorder. We also find that Complainant is a qualified individual with a disability in that she can perform all of the essential functions of her position as a Registered Nurse, with the exception of working in the psychiatric ward (3CB). According to RMO1, RMO3, RMO7, and RMO10, Complainant was assigned to 3CB on June 9, 2014, after she completed her training and received her license as a Registered Nurse, and that the assignment was based on the operational needs of the Agency at the time. IR 194, 206, 261-62, 272-73, 275. It soon became apparent, however, that being in the psychiatric ward was causing her to experience anxiety on an almost daily basis. As a reasonable accommodation, Complainant requested that she be reassigned from 3CB. In support of her request, she submitted appropriate medical documentation and a letter from the Dean and Executive Vice President of the Indiana University of Pennsylvania, which Complainant had attended, attesting to the fact that Complainant had experienced test-taking anxiety while she was a student there. IR 194, 207. 220-21. After conducting a search of available positions, RMO3 offered Complainant a position in a ward known as 5-West, the duties of which were within her medical restrictions. Complainant, however, refused to accept this position and repeatedly failed to provide any medical documentation as to why the proposed reassignment to the 5-West ward was unacceptable. While Complainant is entitled to an effective reasonable accommodation, she is not entitled to the accommodation of her choice. Owen T. v. Dep’t of the Army, EEOC Appeal No. 0120180596 (June 12, 2019) citing Lynette B. v. Dep't of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). 2021005160 5 In an effort to move Complainant out of the psychiatric ward until the dispute could be resolved, RMO3 placed her into a location known as “Hero’s Hall,” on a temporary basis. She remained in that location until her separation, answering telephones, dispatching personnel, and performing other non-nursing duties. Around April 2015, RMO3 informed Complainant that the 5-West position was the only vacant, funded position that they could find within her medical restrictions. Complainant was also informed that she could competitively apply for other positions if she so desired. IR 193-95, 199-200, 206-08, 210, 219-24, 261, 263, 306-07. After reviewing the evidentiary record in its entirety, we agree with the AJ that Complainant failed to demonstrate that the Agency failed to provide her reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment To warrant a hearing on her claim of disparate treatment, Complainant would have to raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to 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). The prima facie inquiry may be dispensed in this case, however, since the various RMOs articulated legitimate and nondiscriminatory reasons for their actions vis-à-vis Complainant See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to allegations (a), (b), (d), (e), (f), (h), (m), (o), and (p), RMO1, RMO2, RMO3, and RMO7 all maintained that they attempted to accommodate Complainant by offering her a position in Ward 5-West and temporarily assigning her to Hero’s Hall. They also averred that Complainant refused to provide the medical documentation necessary to show why she could not be reassigned to 5-West. IR 193-95, 199-200, 206-08, 210, 219-24, 261, 263, 306-07. Concerning allegations (i) and (j), which pertained to the fact-finding, RMO1, RMO3, RMO4, and RMO7 averred that RMO8 initiated the fact-finding due to Complainant’s ongoing refusal to accept the position in Ward 5-West that had been offered to her, and that when RMO8 left, RMO4 completed the fact-finding. RMO4 averred that the purpose of the fact finding was to determine whether Complainant could remain in her position as a Registered Nurse. IR 195-96, 222, 232-33, 263. Regarding allegations (k) and (l), RMO1 averred that he gave Complainant much more than eight hours to submit her input for the proficiency report, and that Complainant did not give him any input. RMO2 averred that none of the nurses were given three or four weeks to provide input for their proficiency reports. Both RMO1 and RMO2 maintained that the proficiency report was an accurate assessment of Complainant’s performance during her probationary period. IR 196-99, 210-12. 2021005160 6 With respect to allegations (n) and (q), RMO1, RMO2, RMO3, RMO5, and RMO7 affirmed that the Professional Standards Board was convened because Complainant was a probationary nurse who had not been performing the essential functions of her job despite being offered a reasonable accommodation. In addition to job performance issues, there were also concerns expressed about Complainant’s frequent tardiness, missing reports, and failure to maintain proper documentation. The Board determined that Complainant was unable to perform the essential functions in her initial assignment to the psychiatric ward and that she had failed to provide the medical documentation as to why the position to which she was offered reassignment was not within her medical restrictions. IR 199-200. 212-13, 223-25, 243-44, 253, 263-64. To move forward with a hearing on her disparate treatment claim, Complainant must also raise a genuine issue of material fact as to whether the RMOs’ explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Questions of pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). Aside from her own affidavit testimony, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by the various RMOs for their actions. Likewise, Complainant has not provided us with any documentary or testimonial evidence that would cause us to question the truthfulness of any of the RMOs. Consequently, we concur with the AJ that Complainant has failed to raise a genuine issue of material fact with respect to any of the allegations comprising her disparate treatment claim. Hostile Work Environment To merit a hearing on his claim of discriminatory harassment with respect to these allegations, Complainant would have to raise a genuine issue of material fact as to whether: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected classes; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 2021005160 7 We find no genuine issue of material fact as to whether Complainant satisfies the first two prongs of the Henson test. She belongs to classes protected by Title VII, the ADEA, and the Rehabilitation Act by virtue of bringing her complaint on the bases of race, sex, age, and disability. The conduct to which she was allegedly subjected, including false statements from a coworker and an assault by a patient, were certainly unwelcome from her own, subjective viewpoint. The antidiscrimination statutes that the Commission enforces 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). Therefore, to ensure that her harassment claim survives summary judgment, Complainant must present enough evidence to raise a genuine issue of material fact as to whether 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 raise a genuine issue of material fact as to whether the conduct of the management officials named in his/her complaint conduct was motivated by unlawful considerations of her race, sex, age, or disability. Only if Complainant raises genuine issues of material fact as to both of those elements, hostility and motive, can the question of Agency liability for discriminatory harassment be brought before an AJ for a hearing. Applying Henson’s third prong to allegation (c), RMO1 and RMO2 confirmed that the coworker with whom Complainant had the dispute was a Nurse’s Aide who allegedly refused to cooperate when Complainant asked him to obtain a urine specimen, and that the coworker was removed. IR 197, 207. As to allegation (g), RMO2 asserted that Complainant had reported to her that a patient in the psychiatric ward had pushed her arm away when she attempted to perform a blood sugar analysis on that patient in connection with monitoring for diabetes. Although Complainant reported that she had a bruise on her arm, RMO2 stated that when Complainant had rolled up her sleeve, she did not see any marks or bruises. Nevertheless, Complainant reported an injury to the Occupational Health Office. IR 209-10, 221. Indicators of discriminatory intent include inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Here, while there is some dispute as to whether or not Complainant had suffered bruises as a result of her encounter with the patient in the psychiatric ward, Complainant has not presented any documents or testimony tending to show that RMO1, RMO2, or any other management official harbored any kind of discriminatory animus regarding any of the incidents alleged. Moreover, in applying the fourth prong of the Henson analysis, it is settled Commission precedent that unless the conduct complained of is pervasive and severe, such a single incident or group of isolated incidents will generally not be regarded as discriminatory harassment. Mikki P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120182183 (Feb. 19, 2020). Considering the totality of the conduct alleged, we find that the evidentiary record is insufficient to raise a genuine issue of material fact as to the existence of a discriminatory hostile work environment. Ultimately, we agree with the AJ that Complainant failed to identify a factual dispute in the evidentiary record sufficient to give rise to a genuine issue of material fact as to the existence of discriminatory animus attributable to any of the named RMOs. 2021005160 8 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, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 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. 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. 2021005160 9 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 12, 2022 Date