0120152705
12-05-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sallie M.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152705
Hearing No. 510-2014-00476X
Agency No. 200I-0573-2014100419
DECISION
On August 13, 2015, 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 July 16, 2015, final decision (FAD) 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. For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant did not demonstrate that she was subjected to discrimination or harassment.
ISSUE PRESENTED
The issue presented is whether the FAD erred in finding that Complainant was not subjected to discrimination or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, Grade 11 at the Agency's Urology Clinic, Jacksonville Outpatient Clinic in Jacksonville, Florida. Complainant alleged that she was subjected to a hostile work environment as her supervisors (S1) and (S2), constantly made decisions regarding her unit without telling her, they increased her workload, they did not respond to her emails, they wanted her to complete competencies that she had previously completed, they spoke to her "like a dog," they failed to give her the results of an investigation, and they proposed her removal. Complainant also maintained that S1 and S2 treated her unfairly with regard to time and attendance. For example, she maintained that after she made plans for the day after Thanksgiving, she was told by S1 that she could not take the day off. Complainant was also detailed from her Urology Clinic to another location pending an investigation into her "inappropriate medical documentation." She also maintained that her request to attend training was denied even though educational opportunities were available to staff.
Further, Complainant indicated that her request for advanced sick leave (SL) was denied and her request for reconsideration was also denied. Complainant indicated that a compliance officer was appointed to determine whether documentation entered by her was inaccurate but she never received the results. Complainant also indicated that on May 7, 2014, she was issued a proposed removal and in June 2014, she learned that derogatory statements had been added to her Official Personnel Folder without her input.
On December 9, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic),2 national origin (Puerto Rican), and reprisal when:
1. On or about October 24, 2013, her first level supervisor (S1) denied her request to attend a training class on December 14, 2013, unless she was willing to pay "out of (her) own pocket" and take either Annual Leave (AL) or Leave Without Pay (LWOP);
2. On or about October 29, 2013, S1 informed her that she would have to work the day after Thanksgiving despite the fact that she had already made plans to go out of town following a meeting held in September 2013, during which the holiday schedule had previously been discussed;
3. By memorandum dated and effective November 15, 2013, she was notified that she was being detailed out of the Urology Section pending the completion of an administrative investigation;
4. On February 20, 2014, her request for advanced sick leave was denied;
5. On March 12, 2014, her request for reconsideration of advanced sick leave determination was denied;
6. On or about June 2, 2014, she learned that a proficiency report, which was dated May 2014, and contained a "derogatory" evaluation "full of false statements," had been placed in her personnel file without her input or any discussion about the evaluation from her supervisors; and
7. She was subjected to harassment resulting in a hostile work environment as evidenced by 14 incidents occurring between September 10, 2013, through June 2, 2014.
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 Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued the FAD pursuant to 29 C.F.R. � 1614.110(b).
The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged or subjected her to a hostile work environment. The Agency maintained that its decision did not include a prima facie case analysis on the basis of race, national origin, or reprisal because it articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with respect to Complainant's training request, S1 maintained that she never denied Complainant's request for training. S1 indicated that she explained the types of training that was available and she told Complainant to fill out a training request form but Complainant did not. S1 indicated that an email dated October 24, 2013, and an email from the educational coordinator supported her claim that Complainant was not denied training. Regarding, claim 2, S1 indicated that she explained to Complainant that both she and the other RN could not take leave the day after Thanksgiving as an RN had to be on duty. Nevertheless, Complainant was allowed to take leave because S1 covered for the RNs the day after Thanksgiving.
On November 15, 2013, Complainant was detailed from the Urology Clinic to another location after a review of the records revealed that Complainant had entered inappropriate and inaccurate medical documentation into the system (claim 3); including falsification of signatures, and notations that patients had been seen at the Clinic when in fact they had not been. S1 immediately requested an investigation into the matter and the Medical Director ordered that Complainant be detailed out of the unit as was the standard practice. Moreover, Labor Relations recommended that Complainant have no direct patient care duties or access to any medical records pending the outcome of the investigation.
Regarding claims 4 and 5, management indicated that Complainant's request for advanced sick leave was denied because it was questionable as to whether or not she could pay back the large block of advanced leave that she requested. Her request for reconsideration was denied for the same reason. Regarding, claim 6, management explained that Complainant was not able to review her proficiency report because she was out on leave under the Family Medical Leave Act. S1 further indicated that she was unable to provide an overall rating as Complainant was no longer performing duties or working in the Urology Clinic. S1 maintained that all of the statements in the proficiency report were accurate and had no nexus to Complainant's race, national origin, or EEO activity.
The Agency found that other than the general assertion by Complainant that S1 and S2 were setting her up for failure and that the inaccurate statements and coding made in medical documentation were merely errors, Complainant offered no evidence to establish pretext. Nor was there any evidence in the record that management's articulated reasons were unworthy of belief. The Agency indicated that Complainant's vague and sometimes inaccurate assertions that she was treated differently because of her race, national origin or prior protected EEO activity did not raise any inference of discrimination, nor did the Agency find any evidence in the record that management's actions were based on discriminatory or retaliatory animus.
Finally, with regard to Complainant's allegations that she was subjected to a hostile work environment, the Agency asserted that with respect to claims 1 - 6, Complainant did not demonstrate that she was subjected to discrimination or discriminatory animus so therefore she could not demonstrate that she was subjected to a hostile work environment. The Agency then addressed Complainant's claim 7 where she alleged that she was subjected to a hostile work environment when: she was given an increased work-load; S1 and S2 failed to respond to emails, S1 and S2 made decisions without informing her; Complainant was forced to complete competencies, S1 spoke to her "like a dog;" Complainant did not receive the results of the investigation, and she was issued a proposed removal.
With regard to her claim that her workload was increased, management explained that the work load increased for all employees at the Urology Clinic because the unit went from just seeing patients to performing medical procedures so it was not specific to Complainant. Regarding Complainant's claim that S1 and S2 failed to respond to emails, S2 explained that Complainant in emails requested several meetings with her and S1. S2 indicated that perhaps Complainant thought it took her too long to respond to her email or to schedule the meetings but she had to clear both her schedule, and S1's schedule to set up a meeting with her. Further, with respect to Complainant's claim that S1 and S2 made decisions without informing her, S1 indicated that Complainant did not have managerial authority but behaved as if she did. Complainant was a charge nurse and therefore it was management's duty to tell her the way things should be done. S1 also denied talking to Complainant "like a dog." S1 indicated that she responded to Complainant's request for more nurses and explained to her that they were not getting any more nurses. S1 indicated that she always attempted to treat the staff professionally.
Complainant alleged that she was required to complete competencies that she had already completed; however, management explained that Complainant was required to update her competencies because she was going to be working in a new environment and with new equipment. Moreover, the competencies that Complainant had completed were seven years prior to this request. Management indicated that while Complainant was not happy about being required to complete competencies it was a unit based requirement and Complainant was not the only individual in the clinic required to complete new competencies.
The Medical Officer acknowledged that Complainant did not receive a copy of the investigation results. She explained that once the investigation was completed it went through a further process before it could be presented to Complainant. It would not be available until May 2, 2014. At that time, Complainant was advised of her future status.
Finally, with respect to the proposed removal, management explained that the Chief Medical Officer issued Complainant a proposed removal for 27 specifications of inappropriate medical documentation. She cited six regulations or rules that were violated by Complainant in connection with her improper documentation and coding.
The Agency asserts that even when considering all of Complainant's allegations in total, the evidence shows that the claims were work-related matters that were not discriminatory or severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that she has 25 years of experience as a nurse and has worked for the Agency for the last 14 years with Outstanding performance ratings. She maintains that she experienced discrimination, bullying, harassment, and an intolerable hostile work environment. Complainant argues that she reported S1's behavior to S2 but she simply explained S1's communication style as being "Italian." She indicates that a meeting to discuss S1's behavior was never held even though she requested a meeting several times. Further, Complainant contends that she was falsely accused of keeping illegal patient information on her computer. She asserts that she was one of several Puerto Ricans who were subjected to a hostile work environment. Finally, Complainant maintains that all of her evidence was not mentioned or considered.
ANALYSIS AND FINDINGS
Standard of Review
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").
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases with respect to claims 1 - 6, the evidence shows that the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above, and Complainant did not show that the reasons were pretext for discrimination or show that discriminatory animus was involved in the Agency's decisions.
Moreover, with regard to claims 1 - 6, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Further, with respect to Complainant's various claims of harassment set forth in claim 7, we find that the incidents complained of where work-related matters that typically take place in any work environment. The record indicates that Complainant and management had different opinions about how things should have been conducted, but we find no persuasive evidence which suggested that the incidents were based on her protected bases or that they were severe or pervasive enough to establish a hostile work environment.
With respect to Complainant's contentions on appeal, we find that other than her conclusory statements she has not demonstrated that discrimination or harassment were involved here.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not prove that she was subjected to discrimination or harassment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
___12/5/17_______________
Date
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 Commission recognizes the term "Hispanic" to be an indication of national origin, not race.
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