0120121662
11-29-2012
Eva H. Chapman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Eva H. Chapman,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121662
Agency No. 200I-0557-2010103746
DECISION
On March 8, 2012, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 21, 2012, 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 Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (RN) at the Agency's Carl Vinson Veterans Affairs Medical Center (VMAC) in Dublin, Georgia.
On September 24, 2010, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her based on her disability (major depression, sarcoidosis, asthma, plantar fasciitis, hypertension, kidney problems) and reprisal for prior EEO activity under Title VII and/or the Rehabilitation Act:
1. when her first line supervisor (supervisor) counseled her in writing on March 16, 2010 (harassment); and counseled her in writing on May 21, 2010 and June 24, 2010 (harassment and discrete acts of disparate treatment);
2. from April 2009 to July 11, 2010, her supervisor gave her assignments that caused her to miss lunch and breaks (harassment);
3. on June 15, 2010, her supervisor sent an e-mail containing gossip (harassment);
4. from June 17, 2010 to June 24, 2010, her supervisor questioned staff members and patients about her work performance and conduct (harassment);
5. on July 30, 2010, her supervisor failed to respond to her request for leave (harassment);
6. her supervisor charged her with absence without leave (AWOL) from August 1, 2010 to August 27, 2010 (harassment and discrete act of disparate treatment);
7. on August 20, 2010 and September 3, 2010, she was not compensated for two pay periods (harassment and discrete acts of disparate treatment);
8. on August 31, 2010, she was accused of exhibiting performance deficiencies and other misconduct by her supervisor (harassment);
9. on August 31, 2010, a Human Resources Officer attempted to withhold information about her from the Summary/Professional Review Board (harassment);
10. on September 24, 2010, she was forced to resign in lieu of termination during her probationary period (harassment and discrete act of disparate treatment), and
11. on or about September 28, 2010, she learned that four Agency employees and/or managers electronically accessed her medical records from March 2009 to September 2, 2010.
The Agency ultimately treated issue 11 as a separate complaint, and referred Complainant back to EEO counseling on this issue.
Following an investigation of the remaining issues, the Agency notified Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant failed to prove discrimination.
Complainant started working at the VAMC on September 28, 2008, and began reporting to the supervisor on or about April 2009. According to Complainant's second line supervisor, the following occurred.1 Around October 22, 2009, Complainant stopped reporting to work and began calling in saying her child was ill, and requested to invoke the Family and Medical Leave Act (FMLA). When the supervisor called Complainant and asked her to bring in medical documentation she responded that she was harassing her about her sick child. At some point Complainant told her supervisor that she faxed the medical information to an Employee & Labor Relations Specialist in Human Resources. Since the latter person did not receive the fax, she called Complainant who responded she was harassing her about her sick child. Complainant was off work for two months. Report of Investigation (ROI), at 38-39. Portions of this account are corroborated by the supervisor's writings. On December 7, 2009, the supervisor wrote that she had no time frame on when Complainant would return.
The second line supervisor wrote Complainant never brought in medical documentation on her son's illness. Complainant stated she submitted this documentation to Human Resources. The record contains a "Certification of Health Care Provider" dated November 18, 2009, that was allegedly faxed to the Employee & Labor Relations Specialist. It indicated Complainant's son had moderate asthma, required appointments monthly and as needed, and was not currently hospitalized. The certification was not signed by Complainant as required, nor did she respond to a question therein on an estimate of the period she would provide care, including a schedule if leave was to be taken intermittently or if it would be necessary for her to work less than a full schedule.
Turning to issue 1, on March 16, 2010, and May 21, 2010, Complainant was counseled by her supervisor in writing regarding use of leave. The first counseling advised that she had a sick leave balance of 40 hours or less, and the second that she had zero balances of sick and annual leave. Complainant was advised that if she needed leave for some unexpected event, she may have to take leave without pay (LWOP), approval of which was conditional.
The Agency found that Complainant engaged in prior EEO activity and was an individual with a disability. The supervisor stated she did not have knowledge of Complainant's conditions giving rise to her disabilities, and when she discussed Complainant's low sick leave balance with her Complainant merely responded okay without elaborating. On Complainant's harassment claim the Agency found Complainant did not show the counselings occurred because of her protected groups (disability and reprisal for EEO activity). The Agency found the supervisor did not disparately treat Complainant because she counseled others when they had low sick leave balances.
The supervisor counseled Complainant on June 24, 2010, for inappropriate behavior that could have led into a hostile work environment i.e., loudly and unprofessionally bickering with another RN at the nursing station. The Agency found the counseling occurred for the reason charged, not discrimination, and Complainant was not disparately treated in that the other RN was also disciplined (counseled).
On issue 2 the supervisor recalled no more than two incidents when Complainant may have missed her lunch break or had a shortened lunch break because she needed to fill in for another nurse. The second level supervisor wrote that her analysis of Complainant's schedule from March 28, 2010 to July 3, 2010, revealed Complainant worked 8 times with only one other nurse (as opposed to two), not including the Nurse Manager, comparable to other RN's. ROI, 39. The Agency found no connection between Complainant's protected groups and this alleged harassment.
On issue 3 the Agency found that the email regarded only who would be Acting Nurse Manager while the supervisor was on travel. Complainant took issue with this email being sent to other Nurse Managers. The supervisor stated that before she goes out on travel she is required to let people know who will be the Acting Nurse Manager on what days while she is out. ROI, Affid. B, transcript page 37. The Agency found no connection between this alleged act of harassment and Complainant's protected groups.
On issue 4 the supervisor stated she questioned some nurses only after they said they could not work with Complainant due to her behavior, and a patient also complained. The record contains reports of contact written by two of Complainant's co-workers on or about July 26, 2010, both stating they did not want to work with her because of her behavior. The first co-worker described an incident of Complainant trying to shirk work and with a bad attitude complaining over and over again to her that the co-worker and other nurses were abusing a break when this was not true, and complaining to a patient she was at the nursing station alone during the break. The second co-worker complained that on July 25, 2010, Complainant was acting like a big drama queen and was complaining all the time. ROI, at 386-388. The Agency found no connection between the supervisor's questioning and Complainant's protected groups.
Issues 5, 6 and 7, arise from the same event of Complainant being charged AWOL from August 1, 2010 to August 27, 2010. On June 29, 2010, Complainant gave a Personnel Management Specialist in Human Resources a Certification of Health Care Provider FMLA form signed by a physician in June 2010. The physician indicated that Complainant's mother had chronic serious health conditions, and required assistance with the activities of daily living, transportation, and appointments, was unable to care for herself, and suggested Complainant's daughter was involved in the needed care taking. Complainant did not sign the form, as required, nor respond to the question therein about leave she would need. ROI, at 510 - 514.
The Personnel Management Specialist stated the following: when she received the above form from Complainant she told Complainant she needed to submit a request for leave form 71 and the above form to her supervisor. Complainant got very agitated and loud and said her supervisor was not to know anything about her mother, and the Personnel Management Specialist explained the chain of command that each leave request must take to be approved. The more she tried to explain things to Complainant, the louder she became. The Personnel Management Specialist told Complainant that she would not give the FMLA form to anyone, and that it was her responsibility to inform her supervisor of her request for FMLA and give her the required forms. She advised Complainant the FMLA paperwork was not complete. Complainant kept loudly asking if she was telling her she could not go to her mother on her death bed. ROI, at 514.
On July 30, 2010, Complainant submitted to her supervisor a request for leave form 71 asking for FMLA leave from August 2, 2010 to August 29, 2010, using a variety of paid leave types (but not leave without pay (LWOP)) to care for a family member, and did not submit the FMLA health form. By letter to Complainant postmarked August 4, 2010, but dated July 3, 2010, the supervisor wrote Human Resources just informed her that the FMLA form she turned in was incomplete, to sign it, and to turn it in to the supervisor.
There is a dispute about when the supervisor learned the FMLA health form was incomplete. The Personnel Management Specialist stated that several days after Complainant gave her the FMLA health form the supervisor called asking about Complainant's FMLA. The Personnel Management Specialist stated she told the supervisor that Complainant did not sign the FMLA health form nor complete her part or submit a request for leave form 71. ROI, at 514. The supervisor stated on or after receiving Complainant's request for leave on July 30, 2010, she talked to the Personnel Management Specialist since Complainant said she submitted the FMLA health form to Human Resources. The supervisor stated that the Personnel Management Specialist may have gotten mixed up about the date of their conversation. The supervisor stated the Personnel Management Specialist advised her the FMLA health form was incomplete, so she called Complainant's house several times, and after getting no answer sent Complainant the letter which was inadvertently dated July 3, 2010, rather than August 3, 2010. ROI, Affidavit B-2, transcript pages 17-20; ROI, at 247 - 248. The supervisor stated Human Resources told her Complainant did not want her to have the FMLA health form, and the same thing occurred with Complainant's previous FMLA request.
The supervisor stated that she charged Complainant AWOL because she did not sign the FMLA health form and had zero leave, and if she had been told the forms were complete she would have approved the request for FMLA leave.
On issues 5, 6, and 7, the Agency found that Complainant was charged AWOL with the consequent actions because she failed to submit the documentation required to support her request for leave, not because of her protected groups.
Issues 8, 9 and 10 are interrelated, i.e., they regard the information which was presented to the Summary/Professional Review Board (Board), the recommendation of the Board to terminate Complainant during her probationary period, and her resignation in lieu of termination. On September 20, 2010, the Board, which was made up of RNs and a human resources technical advisor recommended that Complainant be removed for (1) conduct unbecoming of an Agency employee, (2) unacceptable work attendance, and (3) consistent conduct in creating a hostile work environment. This was based on documentary information presented to the Board, and interviews of Complainant and her first and second level supervisors.
In sustaining charge 1 the Board cited Complainant's response to a fire drill which was characterized as unprofessional, unwarranted, and unbecoming of a nurse assigned to coordinate care for a patient during a potential emergent situation. On May 30, 2009, Nurse Supervisor 1 wrote the following. While she was near Complainant she was advised in person to call a fire drill, which she did by going to a telephone right next to Complainant and calling the "Trouble Shooter." Complainant stood up and started complaining to staff that there was a fire drill going on and she was not told anything, and kept repeating "I know this is Dublin Georgia. I know this is the rural south but you all could have told me what was going on" and quoting bible scripture such as "you reap what you sow" over and over again. Finally, Nurse Supervisor 1 had to tell Complainant that she heard the fire drill was on and she needed to check on her patients and see their doors were closed. ROI, at 372.
In support of the first charge, another example cited by the Board was Complainant abandoning her work station and failing to perform assigned duties. Complainant's supervisor was on travel, and in her absence she assigned one RN to be the Acting Nurse Supervisor for two consecutive days, for Complainant to be the Acting Nurse Supervisor on the third day, and Complainant or another nurse on the fourth day. Affidavit B-2, at transcript pages 35 -37. Nurse Supervisor 2 wrote the following. On June 15, 2010 (the first day of Complainant's supervisor's absence), Complainant was upset about the acting rotation because she wanted it rotated daily. Complainant called the union, was talking on the telephone explaining her situation, and was observed on the computer typing. She was then absent from the floor, and did not notify her or the Acting Nurse Supervisor. As a result, at 9:30 AM others had to do Complainant's assignment of passing out medicine to patients. Complainant was absent most of the morning. Around 1:30 PM Complainant told the Acting Nurse Supervisor it seemed like she was not needed so she would go home if she was not needed. The Acting Nurse Supervisor asked Complainant if patient wound care had been completed.
Nurse Supervisor 3 wrote the following. On at 9 AM on June 15, 2010, Complainant called her complaining that she was always placed in charge and required to give medication when staffing was poor, that she was stressed and her blood pressure was high and was worried she would have a stroke. She advised Complainant to write a report of contact, and to go home if she was not well. At 1:20 AM, she learned Complainant was still in the hospital, and called the Acting Nurse Supervisor. The Acting Nurse Supervisor stated Complainant had not performed her assignment, spent her time writing up a report of contact and may have done a few skin assessments. Nurse Supervisor 3 then spoke with Complainant, who agreed to leave work and follow up with her physician.
In support of charge 2, the Board wrote that from October 2008 to August 2010, Complainant was out 1,105 of 4000 hours, 28% of the time, and the evidence showed her supervisor and human resources repeatedly directed Complainant on the proper procedures for requesting FMLA leave, suggesting she did not use them, and noting Complainant did not provide the Board additional documentation to support her excessive leave. In support of charge 3, the Board found that Complainant's aggressive and unprofessional conduct created a hostile work environment and poor interpersonal relationships. The Board appeared to be relying, at least in part, on the June 24,2010, incident of bickering and the above discussed statements by two co-workers about her behavior in July 2010.
On issue 9, the Agency recounted the Human Resources Officer's statement that she did not receive a request from the Board for information or documents.
On September 23, 2010, the Director of the VAMC, based on his own review of the evidence, sustained the Board's recommendation to remove Complainant effective September 24, 2010. Before the removal became effective, Complainant resigned effective September 24, 2010.
The Agency found that information was presented to the Board and its recommendation to remove Complainant were based on her actions, not discrimination or reprisal.
ANALYSIS AND FINDINGS
On appeal Complainant argues that the Agency's handling as a separate complaint her claim about people electronically accessing her medical records, which was currently in the informal EEO process, fragmented her claim and resulted in information in support of her claims not being included in the record. Because the claim was not dismissed, there is nothing for us to rule upon. Moreover, we find that the investigation in the case before us was sufficient.
Complainant alleges that she was subjected to a hostile work environment and harassment. To establish a prima facie case of hostile environment harassment a complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11.
To prevail on her disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant's supervisor learned around April 2009 that Complainant had a prior EEO complaint at the VAMC which did not involve her. Affidavit B-1, at transcript pages 5 -6. She learned of the instant EEO case in late June (no earlier than June 25, 2010) or July 2010. The supervisor stated that when she supervised Complainant she had no knowledge that Complainant had a disability, i.e., she never gave her any medical documentation that would make her aware of any medications or restrictions. This is consistent with Complainant not wanting her supervisor to see the FMLA health forms on her son and mother.
On issue 1, Complainant did not establish a prima facie case of reprisal discrimination. The counselings occurred some 11 months and more after she learned of Complainant's EEO prior activity which did not involve her, too much time to create an inference of discrimination. Complainant also did not make out a prima facie case of disability discrimination because the supervisor was not aware Complainant had a disability. Assuming for the sake of analysis that Complainant made out prima facie cases, the supervisor explained that Complainant was counseled because of her low leave balances and for lengthy bickering. Complainant argued that her leave balances were low because she took leave for her medical conditions. The documentation in the record does not show that she took significant amounts of leave for her medical conditions or that the supervisor was aware of this. Rather, it shows she took significant amounts of leave to care for her son and mother and failed to follow proper leave procedures in doing so. Complainant's contention that she was not aware that she needed to submit additional documentation is not credible. Her contention that she was disparately treated is unpersuasive. She did not have any idea of the leave balance of a comparative employee who took off for the birth of her granddaughter. While Complainant denied bickering on June 24, 2010, the charge is supported by the evidence -- statements by the co-worker Complainant bickered with and Complainant's supervisor, who witnessed the bickering.
On the remaining portion of the complaint we will assume, without finding, that Complainant established prima facie cases of reprisal and disability discrimination. On issue 2 Complainant submitted schedules to show she was unfairly scheduled during low staffing periods, resulting in her missing lunch. We were unable to independently decipher from a review of the schedules whether there was a pattern of staffing being short when Complainant was scheduled. Complainant has not shown she was disparately scheduled, let alone that she was deliberately scheduled when staff was short. The record shows that the email referred to in issue 3 in no way contained gossip. On issue 4, the record shows that Complainant's supervisor questioned staff, which included a negative comment from a patient about Complainant, because it was brought to the supervisor's attention that Complainant engaged in misconduct and unprofessional behavior. Complainant did not show she was disparately treated.
On issues 5, 6, and 7, the record shows that Complainant was charged AWOL because she did not follow proper procedures for obtaining FMLA, and had a zero leave balance. Complainant argues that her supervisor was aware she did not complete the FMLA health form by July 3, 2010, and discriminatorily delayed advising her of this until August 2010, after she already left to stay with her mother. Complainant also contended that she only had a mobile phone then which she kept with her at all times, and there is no record of the supervisor trying to call in early August 2010. Given that Complainant did not give the FMLA Health form to the supervisor, we find that this lack of communication was the likely cause of any delay in the supervisor informing her that the form was incomplete. Moreover, even after Complainant was informed of the problem by the supervisor, the record does not show she completed the form.
We agree with the Agency's finding of no discrimination on issues 8, 9 and 10. The Board did not ask the Human Resources Officer for documentation. We find the Board recommended Complainant's removal for the reasons it stated, not her disability or reprisal. Complainant's contention that she did not know what to in a fire drill is not credible, and in any event does not excuse her unprofessionalism during the drill. On abandoning her work station, Complainant argued that she did not abandon it, rather, she took the actions Nurse Supervisor 3 told her to take -- writing a report of contact and going home. This does not explain Complainant's four hour or so absence while remaining on hospital premises on the morning of June 15, 2010. Also, Complainant did not inform the people she was working with, the Acting Nurse Supervisor and Nurse Supervisor 2 of their whereabouts, even though it was her assignment to distribute medicine while she was away. We have already addressed Complainant's contentions about leave, and the record supports there were incidents of her being unprofessional and hostile to her co-workers. Complainant submitted a petition she gathered in September 2010 signed by multiple people that they witnessed her being professional and appropriate in interpersonal relationships with co-workers and patients. This petition does not undermine the charges against Complainant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2012
__________________
Date
1 The second line supervisor left the VAMC and did not provide an affidavit. There are various writings by her in the record.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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