0120152385
04-04-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kathy D.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152385
Hearing Nos. 510-2014-00332X
510-2015-00136X
Agency Nos. 200I05732013104723
200105732014103347
DECISION
On July 9, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 10, 2015, final decision 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 Nurse Manger at the Agency's North Florida/South Georgia Healthcare System in Gainesville, Florida.
On October 24, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Ongoing since May 2012, the Chief Nurse of Psychiatry (Chief Nurse) refused to address Complainant's issues and complaints of harassment by the Union.
2. On October 2, 2013, the Chief Nurse informed Complainant that she was being investigated, and that Complainant would be relocated off-site during the investigation.
3. On October 9, 2013, when Complainant was detailed pending an investigation, she was instructed to assume responsibilities given by the Nurse Manager, which included chart reviews and other odd tasks.
4. On November 5, 2013, after Complainant submitted her Administrative Grievance, the Nurse Manager informed Complainant that the Chief Nurse instructed the Nurse Manager that Complainant needed to learn how to do admissions.
5. In December 2013, during a conversation with the Nurse Manager, Complainant was informed that the Chief Nurse repeatedly checked on what duties Complainant was assigned, which was not the case when other Nurse Managers were detailed.
6. On December 27, 2013, the Nurse Manager informed Complainant that the Chief Manager told her that Complainant could cover for the Nurse Manager while she was on leave in May 2014. The Nurse Manger instructed Complainant that she was to be oriented to the roles of the Health Tech, the Licensed Practical Nurse and the Registered Nurse so that she is able to function in these roles when staff called out, leading Complainant to believe that she had been reassigned to the unit.
7. On January 3, 2014, the Nurse Manager requested that Complainant work the evening and night shift to cover for vacations and sick leave.
8. On January 6, 2014, after trying to reach the Chief Nurse several times to request leave, Complainant had to request leave from the supervisor, because the Chief Nurse failed to respond to her messages.
9. On January 13, 2014, the Chief Nurse requested that Complainant provide sick leave documentation for being out on leave.
10. On January 17, 2014, during a discussion with the Nurse Manager, Complainant learned that the Chief Nurse requested that the Nurse Manager discuss any concerns she had with Complainant in an open conference call with other Nurse Managers.
11. On January 22, 2014, the Chief Nurse informed Complainant that her performance evaluation was not finalized and it had been placed on hold, although it was due in October 2013.
On July 11, 2014, Complainant filed a second EEO complaint. She alleged that she had been subjected to unlawful harassment based on retaliation (prior EEO activity). Complainant alleged that the following events occurred in support of her claim:
12. On May 1, 2014, the Acting Associate Director, Patient Care Services (AA Director) contacted Complainant stating that the Chief Nurse of Psychiatry (Chief Nurse) was not comfortable supervising Complainant, and requested that Complainant be reassigned to another supervisor.
13. On June 11, 2014, Complainant sent an e-mail to the Chief Nurse inviting him to tour with her on the unit to identify any design issues, but she received no response. When the tour was completed without the Chief Nurse, Complainant sent him an e-mail with her recommendations, but received no response.
14. On June 12, 2014, the Nurse Manager asked Complainant to assist her with interviews for a Registered Nurse (RN) Staff Nurse position. However, when the Chief Nurse learned that Complainant was on the panel, he instructed the Nurse Manager to cancel the interviews.
15. On June 16, 2014, the Chief Nurse refused to complete Complainant's performance evaluation that was due in October 2013, although the AA Director instructed the Chief Nurse to complete the evaluation on April 8, 2014.
16. On June 17, 2014, Complainant sent the Chief Nurse another email seeking guidance, but received no response.
17. On June 24, 2014, Complainant forwarded the email to the Deputy Director informing her of Complainant's concerns regarding the Chief Nurse's behavior. Within two hours of sending this email, the Chief Nurse responded to about five of Complainant's previous emails sent to him 1-2 weeks earlier.
18. On July 23, 2014, Complainant received her performance evaluation, nine months after it was due, which contained input from the Chief Nurse that was never discussed with her prior to her evaluation, and did not provide her an opportunity to improve.
The Agency accepted both complaints for investigation. The complaints were investigated separately. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notices of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings on both complaints. Subsequently, Complainant withdrew her hearing requests. Both complaint files were returned to the Agency on March 19, 2015, and March 20, 2015, respectively. Consequently, the Agency consolidated that complaints and issued a single final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency dismissed some incidents, noting that the events were raised against the Union and not the Agency. Further, the Agency noted that claims (2) and (3) involved an internal investigation regarding an alleged verbal assault by a subordinate employee. As such, the Agency dismissed claims (1) - (3), pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state separate a claim. The Agency noted that claim (3) was still to be considered as part of Complainant's claim of harassment.
With regard to the remainder of the complaints, the Agency determined that it met its burden of articulating legitimate, nondiscriminatory reasons for its actions. Further, the Agency held that Complainant failed to show that the Agency's reasons were pretext for discrimination. The Agency determined that Complainant failed to demonstrate that the incidents alleged were grounded in discriminatory intent or bias. The Agency also noted that Complainant failed to link the conduct to her protected bases or that the events were sufficiently severe or pervasive to establish a valid claim of harassment/hostile work environment claim. Accordingly, the Agency concluded that Complainant did not prove that she was subjected to disparate treatment and/or harassment based on race or in reprisal for prior EEO activity.
This appeal followed. Complainant asked that the Commission find that she was subjected to harassment and discrimination based on her race and prior protected activity. Complainant also asserted that she felt that she was coerced into withdrawing her hearing request. As such, she asks that the Commission reverses the Agency's final decision and remand the matter to "an unbiased" AJ. The Agency asked that the Commission affirm its decision.
ANALYSIS AND FINDINGS
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").
As an initial matter, we find that Complainant has provided no evidence to support her claim of coerced withdrawal of her hearing request beyond her argument in her appeal brief. As such, we find that Complainant has not supported her claim of coercion. Therefore, we shall review the Agency's final decision.
Dismissal of Claims (1) - (3)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the arbitration proceeding (claim 1) was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the arbitration process. In claim (1), Complainant alleged that the Agency failed to address claims of harassment by Union officials at the arbitration. As such, we affirm the dismissal of claim (1) pursuant to 29 C.F.R. � 1614.107(a)(1).
With regard to the Agency's dismissal of claim (2) and (3), we find that they should not have been dismissed as they are part of Complainant's claim of ongoing harassment. We note that the Agency investigated these claims and there is sufficient evidence of record to address them herein.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for the actions alleged. As to claim (2), the Chief Nurse indicated that Complainant was being detailed pending an investigation involving harassment in the workplace between Complainant and another nurse manager. As for claim (3), as part of the detail, Complainant was instructed that she would receive assignments from the domiciliary nurse supervisor.
In claim (4), Complainant indicated that she was told to learn from the Registered Nurse how to do admissions. Complainant stated that the Registered Nurse was mentioned in her grievance and compared Complainant to a sociopath. The Chief Nurse stated that each staffing unit uses different procedures, as such, Complainant needed to learn the procedures for her detailed unit.
In response to Complainant's claim (5) that the Chief Nurse repeated checks in on her, the Chief Nurse denied this claim that it happens as frequently as suggested by Complainant however he noted that he remains the supervisor and will check in on his subordinates including Complainant and the Nurse Manager.
Complainant was told by the Nurse Manager that she may have to fill in for her in May 2014, when the Nurse Manager would be on leave. As such, Complainant needed to learn the duties of the posts and the positions so she could fill in. In claim (6), Complainant raised this issue because she was told that she may return to her regular post by December when the investigation was over. The Chief Nurse noted that Complainant needed to train in all the nursing duties of her detailed location because she may be called upon by the Nurse Manager at any time to do other assignments based on the needs of the unit. The Nurse Manager averred that she did not ask Complainant to cover her in May because they were not sure she would even be the unit by then. She did instruct Complainant to become familiar with the nursing functions of the unit.
In claim (8), Complainant indicated that she had leave requests but the Chief Nurse failed to respond to her messages regarding the requests. The Chief Nurse stated that he could not respond to Complainant's request. However, he noted that there is a proper procedure for requesting leave by calling the nursing supervisor on duty who logs in the requests at any hour of the day and will get back to the requesting employee on whether the request was approved or denied. The Chief Nurse noted that Complainant had a proper procedure to make her request and she did not use it. The Nurse Manager corroborated the Chief Manager's statement that Complainant could have made her request with the nursing supervisor who would have contacted the Chief Nurse. In claim (9), Complainant alleged discrimination when she was asked by the Chief Nurse to provide sick leave documentation. The Chief Nurse asked that Complainant provide documentation for a period of five days when Complainant had been marked as off due to sick leave.
In claim (10), Complainant indicated that she learned from the Nurse Manager that the Chief Nurse requested that the Nurse Manager discuss any concerns with Complainant in an open conference call with other Nurse Managers. However, the Nurse Manager and the Chief Nurse deny that this claim occurred as Complainant asserted. The Nurse Manager indicated that the nurse leadership holds meetings each Wednesday morning about updating the nursing unit and it was not about Complainant at all.
In claim (12), Complainant asserted that the AA Director asked if she would be more comfortable with another supervisor because the Chief Nurse was purportedly no longer comfortable supervising Complainant. The AA Director averred that the Chief Nurse indicated to her that if Complainant felt that he was creating a hostile work environment for her, then maybe he should not supervise her. The AA Director then moved Complainant under her own supervision. She indicated that it was not to further harass Complainant. The Chief Nurse supported the assertion that he made the request based on Complainant's claim that he was the source of harassment or hostility.
In claims (13), (16), and (17), Complainant asserted that she sent emails to the Chief Nurse but received no responses. These emails were sent on June 11, 17, and 24, 2014. Complainant included the Deputy Director on the last email. The Chief Nurse stated that Complainant sent him seven emails since June 11, 2014, and responded to all of them by June 24, 2014. He indicated that due to the number of emails he receives, he is not able to reply to each email immediately and asserted that he had received over 1500 emails for the month of June of 2014.
Complainant alleged in claim (14) that the Chief Nurse asked the Nurse Manager to cancel interviews when he learned that Complainant was assigned to the panel. The Chief Nurse averred that he cancelled the interviews because they did not have an interview tool approved by him at the time so the interview questions were not ready. He also noted that Complainant was not a good fit for the panel for she was not familiar with the operations, needs, or structure of the program area which was hiring. The Nurse Manager confirmed the Chief Nurse's assertion that she cancelled the interviews because the interview questions had not been reviewed by the Chief Nurse.
Complainant asserted in claim (11) that her performance evaluation was not finalized when it was due in October 2013. Complainant believed this was because management wanted to wait until the internal investigation was finalized. The Chief Nurse noted that he did wait for the completion of the internal investigation before issuing evaluations for both Complainant and the other Nurse Manager and that both of their evaluations coincided with one another. Subsequently, in claims (15) and (18), Complainant alleged that the Chief Nurse had not completed the evaluation in April 2014 and when it was issued, it was never discussed with her. The Chief Nurse noted, as with claim (11), that he wanted to have the completed internal investigation before issuing the evaluation. He noted that once the investigation was done, Complainant and her former Nurse Manager were issued their evaluations on July 23, 2014. He also noted that he completed the evaluation in October 2013, and it was placed in abeyance pending the internal investigation. He rated Complainant as "satisfactory."
Based on the totality of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. We turn to Complainant to show that the Agency's reasons were pretext for discrimination. Complainant merely asserted without support that the Agency's actions constituted unlawful discrimination and created a hostile work environment. However, she did not support these assertions with evidence. As such, we conclude that Complainant has not proven, by a preponderance of the evidence, that the Agency's reasons constituted pretext to mask unlawful race-based discrimination and/or unlawful retaliation.
Harassment
It is well-settled that harassment based on an individual's race and/or reprisal is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected class and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in that class and her prior EEO activity; (3) the harassment complained of was based on race and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In other words, 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, because of her race or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. As noted above, we find that Complainant has not established that the events listed by in support of her claim of harassment occurred because of her race and/or her prior EEO activity. Therefore, we conclude that Complainant has not established a prima facie case of racial or retaliatory harassment.
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 final decision finding no discrimination and/or harassment.
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
April 4, 2017
__________________
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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