0120103755
12-02-2011
Richard P. Pfenninger, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Richard P. Pfenninger,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103755
Hearing No. 530-2008-00110X
Agency No. 200H-0646-2007102870
DECISION
On September 21, 2010, Complainant filed an appeal from the Agency’s
August 24, 2010, final action concerning his 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 action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Registered Nurse at the Agency’s work facility in Pittsburgh,
Pennsylvania.
On August 20, 2007, Complainant filed an EEO complaint wherein he claimed
that the Agency discriminated against him on the basis of sex (male)
as he claimed that he was sexually harassed when:
1. His supervisor stated that an older male patient should not have
to wear “that scrotal prosthesis, that he should just be able to take
that and that it was just a waste of Agency money to get him a scrotal
support and it’s a shame that he has to have that as a man, those things
hanging as a man.” Complainant further claimed sexual harassment with
regard to his supervisor displaying the scrotal support prosthesis in
the staff room and placing it on her head and dancing around the room.
2. Complainant claimed that he was discriminated against on the
bases of his sex (male) and in reprisal for his prior EEO activity under
Title VII of the Civil Rights Act of 1964 when he was terminated during
his probationary period.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing and the AJ held a hearing on April 1-2, 2010,
and issued a decision on August 10, 2010.
The AJ found that no discrimination occurred with regard to the entire
complaint. AJ’s Decision at 11. With regard to claim (1), the AJ noted
that Complainant admitted that he was not on duty on the date that the
supervisor allegedly placed the scrotal support prosthesis on her head
and danced around the room. Id. at 5. Complainant acknowledged that he
heard about it from a nursing assistant. Id. The AJ observed that the
supervisor testified that she did not have the alleged discussion with
Complainant. Id. at 6. According to the supervisor, the patient being
fitted for the scrotal support prosthesis had dementia and schizophrenia
and was combative whenever the staff attempted to apply it to him. Id.
The supervisor further testified that the nursing assistant was not on
duty on the date of the alleged incident and that she was off duty that
entire week. Id. According to the nursing assistant, she did not inform
Complainant that the supervisor placed the scrotal support prosthesis
on her head and was making fun of it. Id.
With respect to claim (2), the AJ stated that a Summary Review Board
conducting a summary review of Complainant’s performance during
his probationary period determined that Complainant had repeatedly
demonstrated a lack of appropriate judgment for a professional
Registered Nurse. Id. at 7. The errors cited included Complainant’s
failure to provide medications to patients assigned to his care; his
giving medications while seated; and his failure to be aware of and
follow policies such as those for admission assessments and approved
intravenous medications for his assigned area. Id. The Summary Review
Board determined that Complainant received an extended orientation period
and a voluntary reassignment to a slower paced unit as part of an effort
to enable Complainant to improve. Id. Nevertheless, Complainant failed
to make sufficient progress and the Summary Review Board recommended
that Complainant’s probationary period be concluded and that he be
separated from the Agency. Id.
The AJ observed that the supervisor specifically referenced Complainant
failing to follow correct procedure in inserting an IV into a patient; an
incident where Complainant and others failed to give a psychotic patient
his medication and the patient’s psychotic behavior escalated due to the
lack of medication; Complainant’s failure to notify the patient’s
physician regarding the need to adjust the psychotic patient’s
medication; an incident where the supervisor witnessed Complainant
inappropriately leaving his medication cart unlocked and unattended; and
that he provided medication to patients while seated in a wheeled chair.
Id. at 8. Additional incidents included when Complainant neglected to
provide a patient with Tylenol for pain as required; Complainant’s
failure to provide a paranoid schizophrenic patient with the required
Haldol medication to calm him down; and an incident where Complainant
failed to perform a mission assessment on a new patient as he had been
instructed to do. Id.
With regard to claim (1), the AJ found that Complainant failed to
establish a prima facie case of sexual harassment because he was not
aggrieved by the two alleged incidents. Id. at 9. The AJ noted that
Complainant failed to identify any specific harm or injury that he
has suffered due to these incidents. Id. at 10. The AJ observed that
Complainant’s description of the incidents indicate that he was not
the subject of the comments nor the conduct described. Id. The AJ
further found that the harassment claims, when viewed as a whole, were
not so pervasive as to constitute a hostile work environment on the
basis of sex. Id.
As for claim (2), the AJ found that Complainant failed to establish a
prima facie case of reprisal. Id. According to the AJ, Complainant
failed to show that his supervisor was aware of his current EEO activity
at the time she initiated the Summary Review Board termination process or
that the Summary Review Board members were aware of the EEO activity. Id.
The AJ noted that Complainant had no prior EEO activity. Id. With regard
to the sex discrimination claim, the AJ found that Complainant failed
to establish a prima facie case due to the fact that he failed to
identify any similarly situated female probationary Registered Nurse
with a performance record similar to his who was not recommended by the
supervisor for a Summary Board Review and terminated. Id. The AJ found
that Complainant was not a credible witness and that the supervisor,
Agency Director and Summary Review Board members were credible witnesses.
Id. at 11.
The Agency subsequently issued a final action adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected him
to discrimination as alleged.
On appeal, Complainant contends that his nursing notes, e-mails and
documentation from other staff were not admitted to verify his statements.
Complainant claims that the Summary Review Board that terminated him
included a Registered Nurse who was under termination review. Complainant
maintains that he brought to the attention of Agency officials errors
committed by other nurses but these deficiencies were overlooked.
In response, the Agency asserts that Complainant’s testimony, unlike
that of the Agency’s witnesses, was not credible. As to the sexual
harassment claim, the Agency maintains that Complainant was not aggrieved
as a result of the alleged incidents and that these alleged actions
did not rise to the level of being severe or pervasive as to constitute
a hostile work environment. With regard to the reprisal basis of the
termination claim, the Agency asserts that the supervisor was unaware of
Complainant’s EEO activity, and the Agency states that Complainant had
no prior EEO activity. As to the sex basis of the termination claim, the
Agency argues that Complainant failed to identify any similarly situated
individual outside of his protected class who was treated more favorably.
ANALYSIS AND FINDINGS
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. (November
9, 1999).
To prevail in a disparate treatment claim such as this, 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 Prods., Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
To establish a claim of harassment, a Complainant must show that: (1)
he or she belongs to a statutorily protected class; (2) he or 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 Complainant’s 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; and (5) there is a basis for imputing liability to
the employer. See Henson v. City of Dundee, 682 F.2d 897, 903-905
(11th Cir. 1982). Further, the incidents must have been "sufficiently
severe and pervasive to alter the conditions of complainant's employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
As to claim (1), we observe that the supervisor testified that she
did not utter the remarks attributed to her by Complainant regarding
the patient’s scrotal support prosthesis. The AJ found that the
supervisor was more credible in her testimony than Complainant. Further,
the nursing assistant denied in her testimony that the supervisor had
placed the scrotal support prosthesis on her head. Even if the alleged
actions occurred, they were not of sufficient severity or pervasiveness
to constitute a hostile work environment. We find that Complainant was
not subjected to sexual harassment with regard to claim (1).
With regard to the sex basis of the termination claim set forth in claim
(2), we shall assume, arguendo, that Complainant set forth a prima
facie case of sex discrimination. The Agency stated that Complainant
was terminated based on several incidents that were not indicative of
professional performance on the part of a Registered Nurse. Among the
incidents cited by the Agency was Complainant failing to provide a patient
with Tylenol for pain as required and another patient with Haldol to calm
him down. Complainant also neglected to advise a patient’s physician
of the need to adjust the psychotic patient’s medication. In another
matter, Complainant did not follow correct procedure in inserting
an IV into a patient in the lounge and by failing to wear a glove.
Complainant was also cited for leaving his medication cart unlocked
and unattended and passing medication to patients while seated in a
wheeled chair. Additionally, Complainant failed to perform a mission
assessment on a new patient as his supervisor had instructed him to do.
We find that the Agency articulated legitimate, nondiscriminatory reasons
for Complainant’s termination.
Complainant stated that he utilized the wheeled chair for dispensing
medication because he had a back injury. Complainant stated as to the
patient assessment that the incoming patient had a current admission
assessment from his prior facility. Complainant claimed that a new
patient assessment was promptly completed within time constraints.
Complainant denied that he attempted to insert an IV while not wearing
a glove. With regard to a psychotic patient not receiving his medication,
Complainant explained that the patient was at his dialysis treatment and
that he held the medication for his return, but that the patient did
not return on time and he was unable to provide the medication during
his shift. Complainant stated that six other nurses also were cited
for failing to properly medicate this patient and that there were nurses
who committed other errors.
We find that Complainant has not established that the Agency’s stated
reasons for his termination were pretext intended to mask discriminatory
intent. Complainant has not persuasively refuted the cited performance
deficiencies. The AJ found that Complainant’s various explanations
were not credible and we agree.
With respect to the reprisal basis of the termination claim, we find
that Complainant failed to establish a prima facie case of reprisal.
The record reveals that the supervisor was unaware of Complainant’s
EEO activity at the time that she recommended that Complainant receive a
Summary Review Board review. Complainant also has not established that
the Summary Review Board members were aware of his EEO activity during
the relevant period. Assuming arguendo that Complainant had established
a prima facie case of reprisal, we find based on the aforementioned list
of incidents that the Agency articulated legitimate, nondiscriminatory
reasons for its termination of Complainant. Complainant has not offered
credible evidence that supports his position that he was subjected
to reprisal.
The AJ’s finding of no sex or reprisal discrimination is supported by
substantial evidence in the record.
CONCLUSION
The Agency’s determination in its final action that no discrimination
occurred is AFFIRMED.
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
December 2, 2011
__________________
Date
2
0120103755
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120103755