0120160317
04-12-2016
Amina W.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Amina W.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160317
Agency No. AREUKA13JUN01971
DECISION
On October 29, 2015, Complainant filed an appeal from the Agency's September 29, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse at the Agency's Landstuhl Regional Medical Center facility in Landstuhl, Germany.
On September 9, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), national origin (American), color (Black), and age (57) when:
1. On unspecified dates, Complainant was harassed by age related comments;
2. On May 9, 2013, Complainant was counseled about her nursing skills;
3. On May 9, 2013, Complainant was reassigned from duties as a Licensed Practical Nurse to the duties of a Medical Technician; and
4. On June 15, 2013, Complainant was terminated from duty.
The Agency originally dismissed the complaint for untimely filing of the Formal Complaint. Complainant appealed that dismissal and in a Decision dated May 29, 2014 we reversed the dismissal and remanded the claims back to the Agency for an investigation on the merits. See (Complainant) v. Department of the Army, EEOC Appeal No. 0120140066, Recon. Denied, EEOC Request No. 0520140487 (January 29, 2015).
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 (AJ). In accordance with Complainant's request, the Agency issued a 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. Specifically, with regard to harassment, Complainant's first and second level supervisors (S1: Caucasian, White, American, 33 years at time of incidents, & S2: Caucasian, White, American, 39 years at time of incidents) denied that they ever heard or witnessed any harassment or that Complainant ever told them about any harassment. With regard to Complainant being counseled about her nursing skills, reassigned, and then terminated, S1&2 said that the reasons for their actions were because of Complainant's work performance, medical and medication errors, failure to follow instructions, and complaints about her from doctors, patients and their family members. The Agency further found that Complainant failed to show that the Agency's articulated reason for its actions were a pretext to mask discrimination.
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").
Disparate Treatment
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination with regard to being counseled, reassigned, and ultimately terminated from her position.
With regard to claims 2, 3 and 4, S2 averred that the reasons for the Agency's actions were because:
As an experienced Licensed Practical Nurse (LPN), which she told me she had over 20 years' experience in nursing, she should know how to run fluids through an infusion pump, she should know how to do simple math, she should know left from right, she should be able to write in complete sentences. She had problems with all of the above. She was also still on orientation on the unit, meaning she could not perform her duties independently without another LPN or RN working side-by-side with her checking over her work. Typically experienced nurses are on orientation from four to six weeks, not four months, which she was counseled about as well.
Report of Investigation (ROI) p. 373, Bates Stamp 000383.
S2 provided additional detailed examples of Complainant's poor math skills, potential endangering of a patient, her tendency to chart a patient's left side when referring to the patient's right side, and further averred that "[a] patient had specifically requested that she not care for him again as he felt uncomfortable with the type of care she gave. He stated that as a nurse, she was not confident and did not seem as if she knew what she was doing." Id. S2 next averred that:
Doctors complained that she could not give full reports on their pediatric patients and stated they did not want her taking care of any pediatric patients. She was given information on normal vital signs in regards to age-specific (pediatric) patients but was unable to recall the information nor have the information with her when asked if stated vitals (heart rate, respirations, blood pressure) were normal."
Id.
Specifically, with regard to the reassignment, S2 averred that:
I felt [Complainant] was too much of a liability to the unit to continue practicing as an LPN on the unit. She was forgetting to administer medications, she gave the wrong amount of medications, she failed to follow instructions, she failed to properly document medications given resulting in patients receiving the same medication twice. I was afraid she was going to kill a patient.
ROI, p. 375, Bates Stamp 000385.
Finally, with regard specifically to Complainant's termination, S2 averred that Complainant "could not competently perform the duties as an LPN, nor could she perform her duties independently even after extensive training and an extended orientation. After multiple counseling and training sessions, she was still not performing up to standards." ROI, p. 376, Bates Stamp 000386. The termination letter dated May 23, 2013 stated:
This action is being taken due to your failure to demonstrate fitness for continued Federal employment; specifically, you have demonstrated a general failure to grasp, retain and implement information that is necessary for the successful performance of your job. You have received extensive on-the-job training yet you are unable to complete processes independently and in a timely manner. Incidents include forgetting tasks, forgetting to administer medications, poor time management, failure to follow instructions, failure to document patient information properly, initiating incorrect procedures for administering medications and being the subject of patient complaints.
ROI, p. 223, Bates Stamp 000233
The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reasons are pretextual, or otherwise show that discrimination occurred. See Burdine, 450 U.S. at 252-53. Following a review of the record we find that Complainant has not met this burden. Complainant placed the blame for her counseling and reassignment on "the area of charting. I did not received [sic] the proper training and charting was was [sic] a problem for me. I felt it was discriminatory because they did not want me there, making comments about my age and my work performance." ROI, p. 347, Bates Stamp 000357. With regard to her math skills Complainant averred that "Math not [sic] one of my strong points, I stated this is why you have teamwork without attitudes" and further averred that an Agency physician told her that the calculation S2 had asked her perform "is something for the doctors to do not nurses." Id., p. 363, Bates Stamp 000373. With regard to infusing patients, Complainant maintains that "I spoke with pharmacy after the incident and explained about the time I had set on the IV pump for the antibiotic to infused [sic] and according to pharmacy it was OK to infused [sic] at that rate." Id. With regards to complaints about her by a patient and a physician, Complainant said she was unaware of such complaints and asked "why it took so long to come to me about these issues?" Id. With regard to her termination, Complainant averred that "I should not have been terminated, because I never received the proper training, could not get answers to my question [sic], whenever asking a question, they respond in a negative way." ROI, p. 348, Bates Stamp 358. Complainant maintained that "I was having problems getting into the system to complete the training and numerous of request [sic] was sent to the IT department." ROI, p. 364, Bates Stamp 000374.
Following a review of the record, we find that Complainant's responses do not establish, by a preponderance of the evidence, that discrimination occurred. We note in this regard that Complainant has not shown that the management officials who took the actions against her harbored any animus against her protected bases.
Harassment
The Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Complainant maintained that on a number of occasions coworkers made comments about her age, such as "why come here at [your] age?" and "[Complainant] is not cut out for this job. She moves too slow. She too [sic] old for the job." ROI, p. 346, Bates Stamp 000356. Complainant further averred that others did not hear the comments, see id., but maintains that she told management officials about them. See id., p. 363, Bates Stamp 000373. S1 and S2 denied ever hearing Complainant's being subjected to harassment or that Complainant ever told them about experiencing harassment. See ROI, pp. 372 & 383, Bates Stamp 000382 & 000393. Assuming that the events occurred as Complainant described, we find that the actions complained of were insufficiently severe or pervasive to alter the conditions of Complainant's employment and hence we find no harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination or harassment occurred, and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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 12, 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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