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

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2022001660 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrell C.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022001660 Hearing No. 451-2018-00187X Agency No. ARFTSAM17JUL02385 DECISION On February 6, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 21, 2022 final action concerning an 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 relevant time, Complainant worked as a Nurse (Clinical/Psychiatric), GS-0610-11, assigned to the Brook Army Medical Center (BAMC) in Ft. Sam Houston, Texas. On September 20, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him and subjected him to harassment based on his race (African American) and national origin (Nigerian) when: a. On July 13, 2014, Complainant was forced to be the charge nurse in spite of his health situation. 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. 2022001660 2 b. On July 13, 2017, an Agency Major yelled at Complainant and stopped him from making a suggestion that Psych Techs can help Registered Nurses perform routine safety checks. c. On July 20, 2017, an Agency Manager did not put Complainant in charge while she was on leave, but instead appointed another nurse who was less qualified. d. On June 18, 2017, an Agency Major stated that Complainant refused to give a lecture and told Complainant that is disrespectful to tell another nurse that Complainant was more qualified and educated than her. e. In May 2017, he was not selected for a GS-12 Nurse position advertised under Vacancy Announcement NCMD176642251942891HM. f. In February 2017, he was not selected for a GS-12 Nurse position advertised under Vacancy Announcement NCMD166642251874864HM. g. In December 2016, he was not selected for a GS-12 Nurse position advertised under Vacancy Announcement NCMD166642251825735HM. h. On or about August 2016, he was not selected for a GS-12 Nurse position advertised under Vacancy Announcement NCMD161791731722765HM. i. On or about July 2016, he was not selected for a Supervisory Nurse position advertised under Vacancy Announcement NCMD161791731684639MM. Complainant latter amended his complaint to add the following allegations of unlawful retaliation for filing his original September 2017 complaint: j. On October 17, 2017, the Major 2 rated him as “fair” on his annual performance evaluation. k. On October 8, 2017, the Major 2 left him alone without assistance to care for 10 patients. l. On September 19, 2017, the Major 2 marked him Absent Without Leave (AWOL) for two hours while he was in the Information Management Division (IMD) trying to retrieve a note he wrote on a patient. m. On September 19, 2017, the Major 2 told him she was going to reprimand him for invoking “safe harbor” and for allegedly failing to document one of his patients on September 14, 2017. 2022001660 3 n. On September 18, 2017, the Major 2 told him she was going to write him up for giving a patient Nicorette gum without charting it and for calling the supervisor to invoke “safe harbor.” o. On September 14, 2017, the Major 2 tried to deny him from attending his scheduled EEO appointment. p. On September 13, 2017, the Major 2 took him to the Administrative/Payroll Support’s office and told him she was not going to give him any compensatory time for using his off-duty hours to come from home for an official assignment. q. On September 5, 2017, the Major 2 denied him from attending the one-week union training on September 29, 2017, that he requested on March 3, 2017. After its investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. However, the AJ subsequently issued a decision by summary judgment in favor of the Agency, concluding no discrimination or unlawful retaliation was established. In the decision, the AJ incorporated the Agency’s motion for summary judgment. Thereafter, the Agency issued its final action adopting the AJ’s summary judgment decision. The instant appeal followed. 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). 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. 2022001660 4 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 fact-finder could not find for Complainant. Race/National Origin Harassment: Allegations (a) - (d) To prove his discriminatory harassment/hostile work environment 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, his race or national origin. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Based on our independent review of the record, we conclude that the image which emerges from considering the totality of the evidence is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that any of the alleged management actions were motivated by discriminatory animus. Complainant’s claim of race/national origin harassment is precluded based on our findings that he failed to prove that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Non-Selections - Allegations (e) - (i) Complainant also raised a number of non-selections to GS-12 or supervisory nurse positions. However, as the AJ noted, in five of the six postings, no selections were made for a variety of legitimate, non-discriminatory reasons, such as “the positions were reposed for larger applicant pools, human resources errors/issues, internal re-organizations, and a hiring freeze, all of which precluded an actual selection.” Regarding the vacancy for which a position was filled (allegation (e)), the evidence shows Complainant was considered but not selected for a GS-12, Nurse (Administrative) position under Vacancy Announcement NCMD176642251942891HM. 2022001660 5 The responsible selecting officials explained that Complainant was not selected for an interview because he did not have the supervisory experience needed for the position that those who were interviewed had. The record shows the selectee had over eight years of supervisory experience, while Complainant had none. Beyond Complainant’s bare assertions, there was no evidence that his race or national origin played a role in the selection decisions made. Retaliation - Allegations (j) - (q) In Complainant’s amendment to his complaint, he alleged that after he filed his original complaint in September 2017, raising the claims discussed above, he was subjected to a series of retaliatory actions by management. However, we conclude that the evidence fully supports the AJ’s conclusion that there was no indication that retaliatory animus played any role in the disputed matters. Regarding allegation (j), the record supports Complainant being rated as “fair” given concerns over Complainant being absent without leave and being given verbal counseling. Regarding allegation (k), the AJ properly found that there is nothing inherently retaliatory about an employee being left to care for ten patients - it was simply the result of staffing issues on the particular day in question. Regarding allegation (l), Agency management articulated legitimate reasons for charging Complainant AWOL, as he was missing from duty for an extended time- period without informing a supervisor of his whereabouts. Regarding allegation (m), Complainant was issued a counseling statement (not a disciplinary action) because Complainant did not use the proper “Chain of Command,” and not due to any “safe harbor” issues. Regarding allegation (n), the AJ found that a patient safety report was always generated when a nurse did not provide a patient with a prescribed medication in accordance with a doctor’s orders, and this resulted in the “write-up” to Complainant. Regarding allegation (o), the record reflects that Complainant was able to make his scheduled EEO appointment, after various patient care needs were met, and amounted to nothing more than a reasonable delay in the appointment. Regarding allegation (p), no nurses were issued compensatory time, and the AJ properly determined that it fell within supervisory prerogative to deny such requests, generally because the work can be completed during duty hours. Finally, regarding allegation (q), the Agency explained that nursing staffing needs precluded any training requests, and that official time for union activities is possible, but only if patient care needs allow it. In sum, Complainant’s claim of retaliatory harassment is precluded based on our findings that he failed to prove that any of the actions taken by the Agency were motivated by his engaging in protected activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Upon careful review of the AJ’s decision and the evidence of record as addressed in detail above, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination or unlawful retaliation by the Agency as alleged. CONCLUSION We AFFIRM the Agency’s final action adopting the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. 2022001660 6 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). 2022001660 7 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 19, 2022 Date