Zenia M.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity CommissionJul 26, 2016
0120142041 (E.E.O.C. Jul. 26, 2016)

0120142041

07-26-2016

Zenia M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Zenia M.,1

Complainant,

v.

Robert McDonald,

Secretary,

Department of Veterans Affairs

(Veterans Health Administration),

Agency.

Appeal No. 0120142041

Hearing No. 520201200178X

Agency No. 200H05612011103368

DECISION

On May 2, 2014, Complainant filed an appeal from the Agency's March 28, 2014 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant, a Registered Nurse ("RN") worked as a Nurse II on the East Orange Campus of the Agency's New Jersey health Care System in East Orange, New Jersey.

Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), national origin (Haitian), sex (female), and age (over 40) when: she was placed on a three day suspension, effective June 20, 2011, for failure to conduct a Health and Safety Inspection on a patient experiencing suicidal ideation.

At the time, Agency policy dictated that a Health and Safety Inspection must be administered to patients who arrived to the Emergency Department ("ED") as a result of suicidal or homicidal ideation, or who had attempted suicide in the past. The stated purpose of the policy was to insure that the patient was in a safe environment, and it was carried out by RNs. Specifically, the RN conducting the Health and Safety Inspection would search the patient's belongings for any items that could cause harm, remove them from the patient's access, and document the inspection in the patient's record.

Complainant's suspension concerned a patient who arrived in the ED requesting medication because she felt tense and irritable, and was struggling to manage the mood swings associated with her bipolar disorder. Both Complainant, who was the primary nurse assigned to the patient, and the Charge Nurse (the manager on duty) asked the patient if she was suicidal or homicidal and the patient said no. However, the ED doctor who first examined the patient requested a psychiatric evaluation for her, and the Triage Nurse ("C1"), who conducted the patient's intake, believed the patient was experiencing suicidal ideation. C1 wrote that the patient "has thought [about committing suicide] but knows she won't go through with it" in the patient's notes, and informed Complainant of her concerns when she transferred the patient directly to Complainant's care. The patient notes indicated that a Health and Safety Inspection had not been conducted, but based on her own interactions with the patient, Complainant did not conduct one, believing it unnecessary. Shortly after she was placed under Complainant's care, the patient attempted to commit suicide by overdosing on medication she had in her possession.

An investigation was conducted and Complainant was notified that she would be suspended for three days for failure to conduct a Health and Safety Inspection on a patient experiencing suicidal ideation. Complainant appealed, but the suspension was upheld. Complainant also raised the matter with an EEO Counselor, arguing that the doctors and C1, who oversaw the patient's care prior to handing her off to Complainant, did not conduct a Health and Safety Inspection on the patient either, yet Complainant was the only one subject to disciplinary action.

After an EEO 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, the parties engaged in discovery, and the Agency submitted a motion for a Decision Without a Hearing. The AJ granted the Agency's motion, finding Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency subsequently issued a final order adopting the AJ's decision, which Complainant appealed to this Commission.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.405(a) provides that this Commission is to review an administrative judge's determination to issue a decision without a hearing, and the decision itself, de novo. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, a hearing is required. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without a hearing only upon a determination that the record has been adequately developed for such disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003) After examining the evidence provided by the parties, we find that the AJ's decision to issue a ruling without a hearing was appropriate.

Having reviewed the record, we agree with the AJ's finding that Complainant did not establish a prima facie case of discrimination because she failed to identify any comparative employees outside her protected categories who were treated more favorably than her in a similar situation. The two doctors and C1, who Complainant identified as her comparators, held different roles within the Agency, and unlike Complainant, they did not have a professional duty to conduct a Health and Safety Inspection on the patient at issue. With regard to C1 specifically, as a Triage Nurse, C1 only had patients in her care briefly; she conducted intakes that included screening patients for suicidal or homicidal ideation, and handed them off to the Primary Nurse. In contrast, Complainant, as a Primary Nurse, was assigned patients to monitor throughout her shift. This is further supported in the record by the Director of Clinical Services for the East Orange Campus who confirmed that the Triage Nurse conducts assessments only, and then provides the information to the Primary Nurse to act on.

On appeal, Complainant disputes this finding with regard to C1 only, but fails to establish that they are similarly situated. Complainant relies on her supervisor's comment in her chart review, which states in part, "[a Health and Safety Inspection should have been performed] upon placement of patient to a cubicle or bed." (We note that the supervisor's comment also provided that C1 "did the right thing" in her role as Triage Nurse.) Complainant alleges that C1 placed the patient in a bed before signing her over to Complainant, and therefore, C1, not Complainant, had been responsible for conducting the Health and Safety Inspection on the patient. Complainant further argues that she was not required to conduct the investigation at all because she did not place the patient in a bed. Here, Complainant raises a question of fact, because the record does not indicate whether C1 placed the patient in a bed before signing her over to Complainant's care. However, we decline to develop this area of the record further because we find this fact is not material to the outcome of this complaint.

Even if Complainant successfully established C1 as a similarly situated comparator, and that C1 placed the patient in a bed, Complainant cannot show that the Agency's legitimate nondiscriminatory reason for its actions was pretext for discrimination. The chart review conducted after the attempted suicide reveals that at the time the patient was signed over to Complainant, it included multiple pieces of information that are considered "triggers" indicating that the Primary must (and is "expected" to) take precautions to ensure safety, including a Health and Safety Inspection. The "triggers" included, among other things, the patient's notes provided that the patient was pending clearance for a psychiatric evaluation, entered the ED because she was having difficulty with a behavioral health problem, and she two conflicting assessments of suicidal ideation within a short period of time, immediately prior to the patient's handoff to Complainant. Complainant may have sincerely believed that the patient was not a suicide risk, but objective Agency safety policy requires that in such a situation, that the Primary Nurse here, Complainant, had a duty to conduct a Health and Safety Inspection. As for the alleged discrepancy in disciplinary action between Complainant and C1, we find the Agency provided sufficient evidence that it was not C1's responsibility to conduct the Health and Safety Inspection, so it follows that she would not be suspended for failing to conduct one. We also emphasize that ultimately, Complainant, not C1, was responsible for the patient's care at the time of the attempted suicide. We also find that the three day suspension was consistent with Agency disciplinary policy at the time, and. Complainant provided no evidence of a preexisting animosity toward her based on her protected categories.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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

July 26, 2016

__________________

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.

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