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

Equal Employment Opportunity Commission

Aug 31, 2022

Appeal No. 2021000658 (E.E.O.C. Aug. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wanita Z.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000658 Hearing No. 443-2019-00030X Agency No. 200J-0438-2018101765 DECISION On November 3, 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 October 5, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Physician at the Agency’s Medical Center in Sioux Falls, South Dakota. On April 12, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Indian), sex (female), religion (Muslim), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. Beginning in March 2017, and continuing through the present, the [Emergency Department Director (“Director-1”) (United States, female, Catholic)] told Complainant that Complainant needed to work on 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. 2021000658 2 Christmas because Christians need the time off; on November 27, 2017, Director-1 asked Complainant to work a part time schedule; on December 1, 2017, a [Registered Nurse (“Nurse-1”) (United States, female, Christian)] made negative comments to the patients regarding Complainant and interrupted Complainant’s patient consultations; on December 3, 2017, [Director-1] berated Complainant; on December 13 2017, Complainant’s privileges were summarily suspended and [Director- 1] demanded Complainant leave the premises; on January 22, 2018, the [facility director (“Director 2”) (American, male, Christian)], and the [Chief of Specialty Medicine (“Chief”) (Caucasian,2 female, Catholic)] said they had the right to give hiring preference to United States Citizens; and beginning on January 19, 2018 and continuing to February 6, 2018, management stalled giving Complainant with the evidence file that was used in her termination and suspension of privileges. 2. Effective December 27, 2017, Complainant was terminated from her excepted appointment position. 3. On January 19, 2018, Complainant was notified that her clinical privileges were being revoked. 4. On or about March 30, 2018, the facility held a “sham” hearing regarding Complainant’s medical privileges that did not comply with procedural and due process requirements. 5. On or about April 18, 2018, the facility reported Complainant to the National Practitioner Data Bank (NPDB). 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. A hearing was held from September 1-3, 2020. On October 1, 2020, the AJ issued a decision finding no discrimination had been established. Specifically, the AJ found that, with regard to claims 2, 3, and 4, Director-1 averred that she “had serious concerns” about Complainant’s level of patient care based on complaints from patients, nurses, and the Agency’s patient advocate who received complaints from patients. Further, the AJ noted that Director-1 and Chief believed that Complainant could not adequately and independently perform duties in the emergency room. Consequently, Complainant’s termination was warranted, and the AJ found that Complainant failed to establish that her termination was motivated by discrimination or unlawful retaliation. 2 While we recognize that “Caucasian” is not a national origin, we adopt the terminology used by the witness. 2021000658 3 While the AJ found there was “a plethora of evidence” supporting management’s decision, he noted one particular event. Nursing reported to management that Complainant left Nursing alone with a patient, without appreciating that the patient was unstable and leaving nurses to administer Advanced Cardiac Life Support without Complainant’s involvement. Further, the AJ determined that a comparator identified by Complainant was not similarly situated because, unlike Complainant, the comparator was a permanent employee who worked under a different supervisor, in a different medical specialty, and his alleged misdeeds were less serious than Complainant’s. Additionally, the AJ observed that Agency policy required that when temporary employees, such as Complainant, were terminated, their privileges were automatically revoked rather than suspended. The AJ found that Complainant did not show that other temporary employees outside of Complainant’s protected bases had their employment terminated but did not also incur automatic suspension of privileges. With regard to the hearing panel and the report to the NPDB, the AJ found that Complainant’s objections focused on procedural and due process issues with the hearing, but did not identify any irregularity that was indicative of discriminatory or retaliatory animus. The panel members, noted the AJ, provided justifications for their conclusions that were well-reasoned, supported by evidence, and did not exhibit any evidence of discriminatory or retaliatory motives. Finally, with regard to the hostile work environment claim, the AJ found that Agency officials articulated legitimate nondiscriminatory reasons for their actions and thus Complainant’s “claims of harassment fail.” 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. ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 2021000658 4 Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Here, we find that Agency officials articulated legitimate nondiscriminatory reasons for their actions. With regard to the termination, Director-1 averred that she received telephone calls from Nurse-1, and other nursing staff, about the level of patient care provided by Complainant between November 30 to December 2, 2017. According to Director-1, she learned from the nurses that “we had three patients come in who were critically ill, and their diagnosis was not recognized by” Complainant. Director-1 explained that the main incident involved an elderly patient who was admitted to the ER after falling and fracturing three ribs. Director-1 noted that Complainant either only conducted, or only listed, a lung exam: There's no other exam that she did on the patient. Then patient [sic] was found to have a fracture of the ribs and an effusion and at this point the patient, when she says the patient's being sent home in stable condition, she still has not realized that the patient is on a blood thinner. And has what is probably blood in the chest. According to Director-1, Complainant should have performed a head and neck examination, a heart examination, an abdominal examination, a neurological examination and an extremity examination. Instead, Director-1 stated, the patient was already out the door when nurses noted that he was on a blood thinner. They had to run out and call him back. Director-1 further averred: 2021000658 5 So then she puts in an addendum and now she discusses the fact that the patient was on coumadin (blood thinner) for chronic atrial fibrillation, but she had not realized that prior to sending the patient home in what she states as a stable condition. And so the patient, the check of the warfarin level or the blood thinner level, the INR [sic], was not done until she had effectually decided to send the patient home. And then so she, she does note that she talked with the surgeon, but with an INR of 2.7 the patient should not have been home on the same dose of coumadin or blood thinner because he probably had blood in the chest and the possibility of more bleeding with rib fractures. And then said to follow up with primary care if any worsening symptoms, but no follow up appointment was made for this patient to see their primary care physician. They left everything in the patient's hands. And this patient should have been followed closely. The AJ noted that Chief found this incident alone was serious enough to support Complainant’s termination from her position in the Emergency Room. Director-1 further averred that on December 8, 2017, she discussed Complainant’s substandard care of these patients, as well as other patients, with Complainant in order to get her side of the story. Director-1 averred that: I felt that these were basic issues of care that anyone working in an emergency department should have been able to handle. These had the possibility of being a life-threatening illness. And so after my discussion with her, I did not feel that she understood or agreed with my concerns about her level of care. With regard to the initial suspension of Complainant’s clinical privileges, Director-1 explained that in the case of temporary hires, like Complainant, “if they’re terminated its an automatic suspension of privileges”. Afterwards, “there was an investigative board and they upheld the suspension” on or about January 19, 2018. As to the March 30, 2018 hearing, regarding Complainant’s clinical privileges, two of the hearing panel members ((“Panelist-1”) (female, Caucasian, Christian/Buddhist) and (“Panelist- 2”) (female, Sri Lanka, Hindu)) denied that the process was a sham or the that panel members had a preconceived outcome prior to the hearing. In addition, the hearing panel chair (“Panel Chair”) (female, race and religion unknown) asserted that if she had felt that the evidence did not support the suspension of Complainant’s privileges, she would have voted against the suspension. Finally, with regard to Complainant being reported to the NPDB, Director-2 stated that whenever an employee is removed for substandard clinical care, a report is sent to NPDB in accordance with Agency policy and Federal law. According to Director-2 these reporting requirements are “not an optional thing. 2021000658 6 I am obligated to do it.” With the Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretext for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. Complainant disputes that her care was substandard and contends that Nurse-1, and other nurses, were being untruthful in their descriptions of her care. Further, Complainant argues that Director-1 wanted to get rid of her because of her religion and/or national origin, and subsequently, because she learned that Complainant had filed an EEO complaint naming Director-1 as a responsible management official. According to Complainant, all of the patients identified by Director-1 had positive outcomes. Moreover, argues Complainant, the apparent misdiagnosis of symptoms for one patient was due to the dictation machine incorrectly recording what she had dictated. As noted above, the AJ found that the Agency has “a plethora of evidence supporting” the removal decision. Our review of the record supports the AJs finding in this regard. Even assuming, however, that Complainant’s level of care was not so substandard as to justify removal, Complainant has not shown that management officials’ belief to the contrary was so unreasonable as to establish pretext. With regard to the hearing panel, Complainant identified numerous examples of allegedly deficient procedural steps taken by the panel. We note, however, that none of the panel members knew Complainant well, if at all, and Complainant has not presented any evidence of discriminatory or retaliatory animus by them. While Complainant argues that the panel members “rubber stamped” Director-1’s decision, the Panel Chair directly denied this. To the extent Complainant is seeking to argue that any discriminatory or retaliatory animus harbored by Director-1 can be imputed to the panel members under a “cat’s paw” theory, we note that Complainant has not established by a preponderance of the evidence that Director-1 harbored any discriminatory or retaliatory animus against Complainant, nor does the record establish that the panel members felt in any way compelled to adjust their findings to please Director-1. Instead, as noted above, Panel Chair averred that she would have felt comfortable voting against suspension if she found it was not supported by the evidence. As for comparators, Complainant argues that a similarly situated individual outside of her protected bases (“Comparator-1”) (male, Caucasian, religion unknown) had committed numerous treatment errors but did not have his clinical privileges revoke nor was he terminated. We agree with the AJ, that Comparator-1 was not a valid comparator because he worked under a different supervisor and was not a temporary employee. As a permanent employee, his removal would require a different process than the one utilized with Complainant, a temporary employee. Furthermore, as Chief explained during the hearing, Comparator-1’s errors did not “put lives at risk”, like Complainant’s alleged errors. As for Complainant’s argument on appeal, that the AJ applied a “direct evidence” standard of proof, we are unpersuaded. The AJ clearly stated the appropriate standard of proof and a review of the decision confirms application of that standard. 2021000658 7 While Complainant believes that the Agency’s decisions were so unreasonable that “it is particularly difficult not to recognize a retaliatory motive at play as a ‘motivating factor’”, the record does not support her assertion. Instead, we find the record demonstrates that the AJ considered, and then rejected, such motives based on the evidence before him. Simply because the AJ found “absolutely no evidence of discrimination or retaliation” does not mean that the AJ discounted circumstantial evidence or required Complainant to provide direct evidence of discrimination as Complainant appears to be arguing. Moreover, we note that, while Complainant has presented evidence that she may have been treated unfairly, the AJ properly found that Complainant has not presented evidence establishing, by a preponderance of the evidence, that the Agency’s actions were motivated by discriminatory or retaliatory animus. We remind Complainant in this regard that the burden of demonstrating that the Agency's actions were based on prohibited considerations of discrimination rests with her and must be established by a preponderance of the evidence. See Hicks; Burdine; McDonnell Douglas. This, we find, Complainant has failed to do. Complainant also argues that during the hearing, Director-1 went over a chart that she believed showed Complainant’s treatment of a patient and listed a number of errors by the treating physician, only to subsequently realize that the chart was regarding another doctor (“Comparator 2”) (male, Caucasian, religion unknown3) at the facility. Therefore, contends Complainant, Comparator-2 is yet another individual who provided substandard care and was treated more favorably in that he was not subjected to any discipline. We note, however, that as with Comparator-1, Comparator-2 is not similarly situated. Comparator-2 worked under a different supervisor, in a different department, and was a full-time employee with different employee rights. Therefore, Complainant’s attempts to use Comparator 2 as a valid comparator fail. For these and other reasons, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions are pretextual, or that Agency officials harbored discriminatory animus against Complainant’s protected bases. Instead we find that the AJ’s findings are supported by substantial evidence and we discern no basis to disturb them. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when she was terminated, her clinical privileges were revoked, she was subjected to a flawed hearing regarding the restoration of her privileges, and she was reported to the NPDB, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). 3 Complainant asserts that Comparator-2’s religion is Christian, but Comparator-2 was not called as a witness and hence his religion, if any, is unknown. 2021000658 8 A prima facie case of hostile work environment that includes such claims is precluded based on our finding that complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment: Director-1 her that she needed to work on Christmas because Christians need the time off; Director-1 asked Complainant to work a part time schedule; Nurse-1 made negative comments about Complainant to patients and interrupted Complainant’s patient consultations; Director-1 berated Complainant; following the notification of her termination, Director-1 demanded Complainant leave the premises; Director-2 and Chief said they had the right to give hiring preference to United States Citizens; and management delayed providing Complainant with the evidence file relied upon in her termination and suspension of privileges. In considering whether any of the above actions, individually or collectively, constitute harassment, the Commission notes that in Harris, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To prove her harassment claim, Complainant must establish that 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 prove that the conduct was taken because of a protected basis - in this case, x, y or z. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Id. See also, Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Based on our review of the record, with the exception of the Christmas comment, which Director-1 denied making, Complainant has not shown that the alleged actions either involved or were based on her protected bases. Nor do we find that the alleged actions were sufficiently severe and/or pervasive so as to alter the conditions of Complainant’s employment. Therefore, we find that Complainant has not established that she was subjected to a hostile work environment based on sex, religion, or national origin. With regard to retaliatory harassment, we note that the Commission interprets the statutory retaliation clauses “to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Here, Complainant herself maintains that Director-1 learned of her protected EEO activity in early December 2017. Therefore, the actions that occurred prior to that time cannot be included in a claim of retaliatory harassment. 2021000658 9 This leaves the following allegations: following the notification of her termination, Director-1 demanded Complainant leave the premises; Director 2 and Chief said they had the right to give hiring preference to United States Citizens; and Management stalled supplying Complainant with the file used for her termination and suspension of privileges. With regard to the instructing Complainant to leave the premises, Director-1 averred she told Complainant that was not permitted to work her shift, telling her: You can't work in the emergency room until this is resolved. So you need to go home. And that was as threatening as I was. I allowed her to make copies of everything. I allowed her to sit in my office for as long as she needed to pull herself together. She sat in my office for about 30 minutes. Had access to my phone, her cell phone, whatever else she needed, but she was not allowed to see patients. Complainant, disputes Director-1’s account and argues that Director-1 told her to leave the hospital premises because she was a threat to patient safety. There were no witnesses to the conversation. Hence, we find that Complainant has not shown, by a preponderance of the evidence, that the events occurred as she described. As for the remaining two allegations, we find that assuming they occurred as Complainant alleges, these are not the type of action that would likely deter Complainant or others from engaging in protected EEO activity. Therefore, we find that Complainant has not met her burden in establishing that she was subjected to a hostile work environment or retaliatory harassment. The AJ’s findings in this regard are supported by substantial evidence, and we discern no basis to disturb them. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby AFFIRM the Agency’s final order. 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. 2021000658 10 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. 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. 2021000658 11 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 August 31, 2022 Date