Annalee D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 21, 2018

0120171570 (E.E.O.C. Dec. 21, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Annalee D.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120171570

Hearing No. 5720-2012-00304X

Agency No. 200P-0648-2011-910010

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 21,
2017, final order concerning an equal employment opportunity (EEO) complaint claiming
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

During the period at issue, Complainant worked as a Nurse Practitioner, GS-11 at the Agency’s
Primary Care Division Portland VA Medical Center in Portland, Washington.

On November 14, 2011, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency subjected her to discrimination and a hostile work environment based on national
origin (Romanian), sex (female), and in reprisal for prior protected EEO activity when:

1. the Agency failed to select Complainant for a nurse practitioner position on
September 6, 2011;

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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2. the Agency denied Complainant the opportunity to be a “preceptor” on September 17,
2011;

3. the Agency denied Complainant the opportunity to mentor a student on October 3,
2011;

4. the Agency placed Complainant on administrative leave for 30 days on October 14,
2011; and

5. the Agency subjected Complainant to heightened scrutiny regarding her work
performance between September 30, 2009 and November 29, 2011.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge or a final decision within thirty days of receipt of the correspondence. Complainant timely
requested an AJ hearing.

The AJ held a hearing on September 3, and 4, 2015, December 8, 2015, December 10, 2015, and
January 5, 2016. Following the hearing, the AJ issued a decision on February 8, 2017, finding
no discrimination.

The AJ heard testimony from 15 witnesses, including Complainant. The AJ determined that
Complainant failed to show she was subjected to discrimination and a hostile work environment
as alleged. The AJ determined that the Agency articulated legitimate, non-discriminatory
reasons for its actions and Complainant failed to establish pretext. Finally, regarding the hostile
work environment claim, the AJ concluded that Complainant did not provide any evidence that
the alleged events were based on Complainant’s protected bases. The AJ found that
Complainant failed to show that she was subjected to disparate treatment and failed to establish
that management subjected Complainant to a hostile work environment as alleged.

On February 21, 2017, the Agency subsequently issued a final order adopting the AJ’s decision
finding no discrimination.

The instant appeal followed. On appeal, Complainant argues, through counsel, that she has
demonstrated a prima facie case of discrimination based on her sex, national origin, reprisal for
prior protected activity and has established that the Agency’s purported reasons for its actions
were pretext for discrimination.

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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, § VI.B. (November 9, 1999).

Disparate Treatment:

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The AJ correctly determined following a hearing that the Agency provided legitimate,
nondiscriminatory reasons for its actions. The Practice Manager (“M1”), regarding claim 1,
clarified that he had provider positions available, not nurse practitioner positions, which he “had
the discretion to fill” with whomever he “felt best met the needs of the clinic.”
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M1 further stated that he had the option of hiring a physician or nurse practitioner to fill the
vacancy, but felt that the clinic needs would be “better served by hiring a physician.”
M1explained that hiring physicians increased potential patient capacity to 1,200, the physicians
had more in-depth training, and the physicians could participate in after-hour calls, while the
nurse practitioners could not.

Complainant’s immediate supervisor (“S1”) stated that he “probably” informed M1 that he
“didn’t think [Complainant was] a suitable candidate . . . to hire.” S1 clarified that his opinion
on whether he would recommend a person for hire is based on the individual’s “clinical
competence” and “character features,” and S1 stated that his opinion of Complainant was that
she was “not a good candidate for that position.”

The record includes a February 1, 2012 letter from the Human Recourses Specialist (“HR
Specialist”) regarding selection for the vacancy position at issue. The letter states that
Complainant was qualified for the position after she submitted proof of her Master’s Degree.
Management, however, filled the position with a physician, and the recruitment action was
cancelled.

Regarding claim 2, S1 testified that he did not think it would be a good idea for Complainant to
be a preceptor because Complainant’s history included “several less than satisfactory
proficiencies.” S1 explained that Complainant had “below satisfactory on the clinical
competence portion” on her performance rating.

The record includes a copy of Complainant’s performance evaluation signed by S1 and
Complainant in the fall of 2010. The performance evaluation indicates that Complainant
received a rating of “low satisfactory” for nursing practice and an overall rating of “satisfactory.”

Regarding claim 3, S1 testified that nursing professional services sent out an “open invitation”
about the mentoring opportunity to several of the nurse practitioners. S1 clarified that the
nursing professional services failed to follow protocol and should have sent the invitation to the
managers who in turn would have decided proper candidates to be mentors. S1 explained that
pursuant to his conversation with his supervisor, he decided it would be inappropriate for
Complainant to be a mentor given S1’s “concerns about [Complainant’s] practice.” S1 explained
that the mentor position required more work and Complainant already “had difficulty keeping up
with her work.”

Regarding claim 4, the then Chief of Staff testified that, per Agency protocol, a Summary
Suspension of privileges occurs when there are concerns about an individual practitioner’s care
of patients, and management suspends the practitioner’s privileges to conduct a comprehensive
review of the practitioner’s work. The Chief of Staff explained that a summary suspension of
privileges is not a “final action,” but rather a “time out” period to conduct the review.

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In this case, the Chief of Staff stated that 25 of Complainant’s charts were selected and were
reviewed by a nurse practitioner to determine whether “the documentation within the medical
record [is] sufficient so that a peer practitioner could be able to identify based on those things
that quality of care was delivered.” Because the peer review identified “concerns for patient
safety,” the Chief of Staff recommended that Complainant receive proctoring instead of revoking
Complainant’s privileges.2

The independent Nurse Practitioner (“NP”) stated that she reviewed 25 of Complainant’s charts
as part of a peer review. The NP testified that 15 of the charts “had either evidence for
substandard care or lack of evidence to support proper standard of care” and “several charts
exhibited more than one of five care issues.” The NP further stated that the there was a
“common theme for lack of follow-up,” and an “apparent failure to address significant patient
complaints and failure to recognize, misinterpret critical or potentially critical objective dates
that could leave to serious events and outcomes.”

The record includes a copy of an October 11, 2011 letter to Complainant entitled, “Summary
Suspension of Privileges.” The letter explained that the action was taken at the recommendation
of the Chief of Staff because “concerns have been raised regarding the quality of care of
[Complainant’s] clinical practice” and “failure to take such action could result in an imminent
danger to patients.” The letter further stated that the suspension “is pending a comprehensive
review of these allegations” and the comprehensive review would conclude within a 30-day
period.

Regarding claim 5, Complainant’s immediate supervisor (“S1”) testified that he scrutinized
Complainant’s for “good reason” and the scrutiny was “triggered” by “concerns about the
clinical care [Complainant] was providing.” S1 explained that during the spring of 2009, he
received complaints from clinicians “questioning the quality of care [Complainant] was
providing.” S1 stated that the complaints involved three specific instances where Complainant
(1) renewed a very potent immune suppressive medication even though she did not have the
requisite training to do so; (2) failed to notify a patient of laboratory testing results which
resulted in the patient requiring a blood transfusion; and (3) failed to identify a patient’s
overactive thyroid as a pre-op concern, resulting in the patient’s surgery being cancelled at the
last minute. Because these were three isolated incidents, S1 explained that after consulting with
his supervisors, he notified Complainant in June or July 2009 that he would conduct a focused
review of a random sample of Complainant’s charts. S1 testified that the results of review had a
“very high percentage of deficient charts” – roughly “30-40 percent – and S1 provided these
findings to Complainant in a September 2009 memorandum and offered Complainant the
opportunity to improve.

2 We note that the Chief of Staff approved proctoring as an alternative after the period at issue on
January 31, 2012.
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The record includes a copy of a September 3, 2009 Notification of Unacceptable
Performance/Opportunity to Improve addressed to Complainant from S1. The letter identifies
several performance issues including: “inappropriate lab ordering, charting and coding errors,
misuse of consultants, and inappropriate therapeutics.” The letter provided Complainant until
December 3, 2009 to demonstrate acceptable performance.

The record also includes a December 17, 2009 letter addressed to Complainant from S1 with the
subject line, “Notice of Less Than Satisfactory Performance.” The letter states that Complainant
was given a letter of unacceptable performance in September 2009 and since that time, S1
completed a second review of 51 of Complainant’s charts. S1 explained in the letter that while
he noticed improvement in the second review, the Complainant’s charts still contained a “high
promotion of substandard charts.”

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination.

Hostile Work Environment

To establish a claim of discriminatory hostile environment harassment, Complainant must show
that: (1) she belongs to 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 her statutorily protected class; (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. 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 her protected basis – in this her national
origin, sex, and reprisal for prior protected EEO activity. Only if Complainant establishes both
of those elements – hostility and motive – will the question of Agency liability present itself.
Here, as discussed below, Complainant simply has provided inadequate evidence to support her
claim that her treatment was the result of her national origin, sex, and reprisal for prior protected
EEO activity.

As discussed above, we find that Complainant did not establish a case of discrimination on any
of his alleged bases. Further, we conclude that a case of harassment is precluded based on our
finding that Complainant failed to establish that any of the actions taken by the Agency were
motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).

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We AFFIRM the AJ’s decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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“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

December 21, 2018
Date