[Redacted], Norris C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 7, 2022

Appeal No. 2021000389 (E.E.O.C. Jun. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Norris C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021000389 Hearing No. 417-2019-00019X Agency No. 200J-0655-2017105375 DECISION On October 21, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 6, 2020, 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. BACKGROUND During the period at issue, Complainant worked at the Agency’s Aleda E. Lutz Medical Center in Saginaw, Michigan. From January 2013 to September 2017, Complainant was assigned as the Assistant Nurse Manager for inpatient care units that included the Community Living Center, Palliative Care Unit, Acute Care Telemetry and Infusion Clinic. 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 2021000389 Beginning on September 15, 2017, the Agency detailed Complainant to the Saginaw medical center’s Quality, Safety and Value Service as a non-supervisory registered nurse. Later in 2018, the Agency permanently reassigned Complainant to Quality, Safety and Value Service as a Quality Coordinator. On December 22, 2017, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency discriminated against him based on his national origin (Sierra Leonne African), color/race (Black / African-American), sex (male), and in reprisal for prior protected EEO-protected activity when: 1a. Beginning January 2013, and continuing, Management demanded that Complainant complete his Family Medical Leave (FMLA) application immediately, although regulations provided 15 days. 1b. Beginning January 2013, and continuing, Complainant’s prior supervisor, S1a, refused to review his orientation checklist. 1c. Beginning January 2013, and continuing, another supervisor, S1, Nurse Manager, told Complainant that her husband was upset because she shared an office with a Black man, and feared she may have an affair with him. 1d. Beginning January 2013, and continuing, S1 yelled at him in front of others. 1e. Beginning January 2013, and continuing, S1 refused to train Complainant on the aspects of his duties for the position of Assistant Nurse Manager. 1f. Beginning January 2013, and continuing, Complainant was prevented from managing nursing staff as part of his assigned duties. 1g. Beginning January 2013, and continuing, Complainant was required to be ACLS (Advanced Cardiac Life Support) certified, but his colleague was not; and he was forced to take a less favorable schedule which included days, evening and night shifts. 1h. Beginning January 2013, and continuing, Complainant was accused of failing to use proper protocol for granting leave requests. 1i. Beginning January 2013, and continuing, S1 told Complainant that she carried a gun for fear of being raped because Saginaw, Michigan had a high African-American population. 3 2021000389 2a. Beginning January 2013 and continuing, S1 told Complainant that she was the sexual aggressor in her relationship, and she discussed various female issues. 2b. Beginning January 2013 and continuing, S1 commented negatively about a photograph of his daughter. 2c. Beginning January 2013 and continuing, Complainant was forced to move to another office. 2d. Beginning January 2013 and continuing, S1 and S1b, Nurse Managers, spread rumors about Complainant having an extramarital affair, with an illegitimate child. 2e. Beginning January 2013 and continuing, S1b said she wanted to kill Complainant’s wife. 2f. Beginning January 2013 and continuing, Complainant was forced to participate in an Administrative Investigation Board (AIB). 2g. Beginning January 2013 and continuing, the Associate Chief yelled at Complainant. 2h. Beginning January 2013 and continuing, Complainant was issued a proposed removal letter. 2i. Beginning January 2013 and continuing, Complainant received a telephone call from a former employee who told him that she heard rumors that he was found guilty of sexual harassment. 2j. Beginning January 2013 and continuing, Nurse Manager Home Based Primary Care (HBPC) inquired about Complainant’s ethics after he applied for a job on her unit. 2k. Beginning January 2013 and continuing, Complainant’s nursing access menu keys were removed. 3. During FY 2013, Complainant received a lower rating on his proficiency/performance evaluation than he deserved. 4. During FY 2013, Complainant was denied a quality step increase, although management advocated for his white colleagues to receive one. 4 2021000389 5. On September 15, 2017, Complainant was detailed to the Urgent Care unit. 6. On October 6, 2017, Complainant was charged absent without official leave (AWOL). 7. On January 26, 2018, Complainant’s proposed removal was mitigated to a fourteen (14) calendar day suspension. 8. On January 26, 2018, Complainant was reassigned from his position as Assistant Nurse Manager to a Registered Nurse position in Quality, Safety, and Value Services. 9. On February 2, 2018, his nursing access menu keys were removed. 10. On May 25, 2018 and continuing, Complainant was verbally counseled after management informed him that he was not permitted to be physically present on the in-patient care units of the hospital. 11. On June 18, 2018, Complainant received a low rating of “Satisfactory” on his performance appraisal. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, he subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or unlawful retaliation was established. The instant appeal followed. On appeal, Complainant argues that Agency management in general, and S1 in particular, retaliated against him after learning that he had informed some of their co-workers that S1 was not certified in ACLS (Advanced Cardiac Life Support) whereas Complainant maintained a current ACLS certification. Complainant asserts that S1 had told others she was deeply hurt by Complainant’s disclosing her lack of ACLS certification. Complainant argues that misconduct charges against him were fabricated. Complainant states that the Administrative Investigation Board (AIB) was convened against him in an irregular fashion that ignored the regular chain-of-command. Complainant accuses Agency management of sabotaging his ability to defend himself by delaying notification about the exact nature of the charges against him until shortly before the AIB met. Complainant denies that he had abused his authority as an Assistant Nurse Manager and attributed the Agency’s adverse actions to S1’s retaliatory animus toward him. 5 2021000389 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). In accordance with 29 C.F.R. § 1614.108(b), the Agency had to develop an impartial and appropriate factual record for a reasonable fact finder to draw conclusions as to whether discrimination occurred. Complainant may cure evidentiary or factual defects in an investigative report, by notifying the Agency (in writing) of any deficiencies or by requesting a hearing before an AJ. EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. By withdrawing his request for a hearing before an AJ, Complainant waived the opportunity to further develop the record through discovery and to cross examine witnesses. Cristobal F. v. U.S. Postal Serv., EEOC Appeal No. 0120180756, (June 19, 2019). Claims 5, 6, 7, 8, 9, and 11: Disparate Treatment We agree with the Agency’s application of disparate treatment analysis to Claim 5, Claim 6, Claim 7 Claim 8, Claim 9, and Claim 11. Absent direct evidence of discrimination, allocation for the burden of proof in a case alleging disparate treatment is a three-step process. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration (in this case, color, race, national origin, sex or EEO history) unlawfully factored into the Agency’s adverse employment decisions. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The next burden shifts to the Agency to articulate a legitimate or nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Once the Agency has met the second burden, Complainant must carry the ultimate responsibility to persuade us 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); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). We will presume arguendo that Complainant established a prima facie case on the raised bases. Nevertheless, we further find that the Agency articulated non-discriminatory reasons to justify its adverse actions against Complainant, discussed as follows. 6 2021000389 For example, regarding Claim 5’s September 2017 detailing of Complainant out of the Assistant for Assistant Nurse Manager position, the Agency explained that investigating Complainant’s alleged sexual improprieties within the inpatient care units, prompted the decision to detail him to Urgent Care. We find nothing questionable about a management decision to temporarily reassign the accused or any other witness while investigation into workplace misconduct is pending. Regarding Claim 6, which concerned charging Complainant AWOL for being absent from his work area on October 6, 2017, the Agency acknowledged that it had erred. The Agency admitted that the manager who charged Complainant as AWOL was unaware that facility leadership had authorized Complainant eight hours on that day to work at the local union office. Claim 7, Claim 8, and Claim 9, involve various disciplinary punishments and corrective actions that the Agency took, based on an investigation that revealed Complainant had behaved unprofessionally while Assistant Nurse Manager for the medical center’s inpatient clinics. Specifically, the Agency’s investigation determined that Complainant sent text messages to subordinate nurse which contained sexual innuendos and unwelcome propositions. Complainant had also sent text messages that contained inappropriate sexual suggestions to another nurse whom he supervised and had an inappropriate relationship with her. The Agency had originally proposed to remove Complainant because of the serious misconduct charges that had been substantiated against him. Following Complainant’s oral and written responses, it was determined that Complainant’s misconduct warranted suspension and reassignment as opposed to termination. In light of his serious workplace transgressions, it was reasonable for the Agency to impose the suspension as a disciplinary measure and to remove Complainant from management and from the in-patient care as a corrective response to his wrongful behavior in that setting. As to Claim 11, concerning Complainant’s performance evaluation for 2018. Complainant argued that his rating had been artificially downgraded. The Agency, however, reasoned that it was appropriate to for Complainant to receive a satisfactory rating because of the relatively short duration for which Complainant was evaluated in his recently assigned position. We do not argue with Complainant’s position that his performance merited a higher rating. Overall, the Agency articulated legitimate, nondiscriminatory reasons for its actions in question which Complainant has failed to show were pretext for discrimination. We remind Complainant that our pretext inquiry was unconcerned with bad judgment, lack of impeccability, personal dislikes, or administrative mistakes. Marvin W. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). EEOC has consistently held that many basic bureaucratic mistakes without explicit evidence of unlawful animus, are insufficient to support us finding discrimination. Calvin D. v. Dep't of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018); Velda F. v. Dep't of the Interior, EEOC Appeal No. 0120122684 (July 10, 2018). 7 2021000389 Claims 1a through 1i, 2a through 2k, 3, 4, and 10: Harassment / Hostile Work Environment We analyzed Complainant’s remaining claims in the context of a hostile work environment or harassment. To prevail on his claims of discriminatory harassment, Complainant had to prove, by a preponderance of the evidence, that because of animus against his EEO-protected statuses, he was subjected to conduct so severe or pervasive that a reasonable person in that same position would have considered it abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Only if Complainant establishes both elements, abusive treatment and hostile motive, will the question of Agency liability present itself. Complainant v. Dep't of Transp., EEOC Appeal No. 0120131581 (July 18, 2014) citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); also Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (June 18, 1999). Here, Complainant did not show that any of the Agency's acts rose to the level of abusive conduct. Everyday instructions and regular admonishments do not rise to the level of discriminatory harassment. DiFruscio v. Soc. Sec. Admin., EEOC Appeal No. 01982006 (Sept. 13, 2000). In similar cases, we have likewise found that personality conflicts or petty insults although unpleasant, are merely “common workplace occurrences.” Gormley v. Dep't of the Interior, EEOC Complaint No. 01973328 (Feb. 18, 2000) (finding a complainant was not harassed simply because of a supervisor's close daily monitoring or unprofessionally harsh treatment). Similarly, a supervisor who confrontationally questions an employee about his or her duties does not create a hostile work environment that violates Title VII. Carver v. U.S. Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). Furthermore, those comments Complainant found offensive could have been characterized as one-time or off-hand as opposed to pervasive or severe. Additionally, this Commission has held that employees yelling at one-another, absent more, is insufficient to make a work environment discriminatory hostile. As previously discussed, management’s changes to access and assignments were generally legitimate responses to Complainant’s behavior in the workplace. CONCLUSION Based on a thorough review of this entire record and any contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination. 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: 8 2021000389 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). 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. 9 2021000389 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 June 7, 2022 Date