Bernardina N.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 23, 2019

0120181114 (E.E.O.C. Jul. 23, 2019)

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

Bernardina N.,1
Complainant,

v.

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

Appeal No. 0120181114

Agency No. 2001-0509-2017100385

DECISION

On February 9, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s January 31, 2018 final decision 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., and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant was employed as a Staff Nurse in the Spinal Cord Injury
(SCI), Urology and Spinal Cord Service, and is currently employed as a Staff Nurse at the
Agency’s Primary Care, Charlie Norwood VA Medical Center in Augusta, Georgia.

On February 1, 2017, Complainant filed a formal complaint. Complainant claimed that the Agency
discriminated against her based on disability and in reprisal for prior EEO activity when:

1. on November 14, 2016, she was not selected for available nursing positions throughout
the facility; and

2. from November 2015 to November 2016, she was subjected to a hostile work
environment as evidenced by the following events:

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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a. on November 13, 2015, the Licensed Practical Nurse pointed her finger in
Complainant’s face and stated “I am not playing with you, and am putting you
on notice;”

b. on December 25, 2015, the Chief Nurse, SCI stated “I hope [Complainant] has
a job when she gets back;”

c. after reporting a hostile work environment to the Chief Nurse, on January 21,
2016, Complainant was accused of creating a hostile work environment;

d. on January 25, 2016, the Nurse Manager detailed Complainant from SCI to
Spinal Cord Unit, 1GF, S&D department, pending an investigation;

e. on June 17, 2016, she was rated as fully successful for her FY16 performance
evaluation when she should have been rated higher;

f. on November 4, 2016, she was not selected for all available nursing positions
although a position in Surgical Service and others were not filled; and

g. her SCI Urology position was advertised while she was out of the office on
Family Medical Leave Act (FMLA).

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a 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 did not respond.

In its January 31, 2018 final decision, the Agency found no discrimination based on the evidence
developed during the investigation.

The instant appeal followed. Complainant, on appeal, argues that the Agency erred issuing a final
decision finding no discrimination. Specifically, Complainant states that she “be granted an EEOC
hearing as requested on December 12, 2017, within 10 days of receipt and the ability to download
the ROI [Report of Investigation] and Hearing Request Form.”

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ANALYSIS AND FINDINGS

As a threshold matter, we find that Complainant has produced insufficient evidence that she
submitted a timely request for a hearing to the Hearing Unit and the Agency’s EEO Investigative
Services. We note that the record reflects that the Office of Resolution Management (ORM) sent
a copy of the investigative file and Advisement of Rights letter through the Agency’s AMRDEC
Safe Access File Exchange on August 24, 2017 and September 6 and 25, 2017. However, the files
were not downloaded from the system or an election was made.

On December 1, 2017, an ORM representative sent an email to Complainant and her attorney.
Therein, the ORM representative stated “per the phone conversation, attached is a copy of the
Advisement of Rights Letter. We will mail you a copy of your investigative file via UPS for your
records.” The record also contains a copy of UPS proof of delivery printout in which it indicates
that the documents were received on December 8, 2017. Other than her bare assertion, the record
is devoid of any documentation reflecting Complainant’s timely request for a hearing. Therefore,
we will proceed to address the instant formal complaint on the merits herein.

Harassment/Hostile Work Environment

Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v.
United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

To prove a 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 bases -- in this case, disability2 and prior protected activity.
Only if Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself. Here, the evidence simply does not establish that the incidents
occurred as alleged by Complainant and/or occurred because of her disability and prior protected
activity.

Regarding claim 1 and 2.f., Complainant asserted that on November 4 and 14, 2016, she was not
selected for available nursing positions throughout the facility and was not selected for all available
nursing positions although a position in Surgical Service and others were not filled.

2 Complainant identified her disabilities as abdominal spasms and depression. For purposes of this
analysis, we assume, without so finding, that Complainant was a qualified individual with a
disability.

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The Chief Nurse (no disability/prior protected activity) acknowledged that Complainant was
interviewed for open positions by several Nurse Managers “in different respective nursing units
and was not selected.” The Chief Nurse further indicated, however, that Complainant’s disability
and protected activities were not factors in this matter, and that Complainant had never complained
to the Chief Nurse that his non-selections constituted part of a hostile work environment.

Regarding claim 2.a., Complainant alleged on November 13, 2015, the Licensed Practical Nurse
(LPM) pointed her finger in Complainant’s face and stated “I am not playing with you and am
putting you on notice.”

The supervisor explained that the Licensed Practical Nurse (LPN) was immediately detailed from
the work area and a fact finding investigation was conducted.

Regarding claim 2.b., Complainant asserted that on December 25, 2015, the Chief Nurse, Surgical
Cord Unit (SCI) stated “I hope [Complainant] has a job when she gets back.”

The Chief Nurse denied making the statement. Specifically, the Chief Nurse explained that a
phone call was made to Complainant “to explain that she will be detailed during the investigation”
and that the call did not occur on December 25, 2015.

Regarding claim 2.c., Complainant asserted that after reporting hostile work environment to the
Chief Nurse, on January 21, 2016, Complainant was accused of creating a hostile work
environment.

The Chief Nurse stated that Complainant’s allegation was not accurate. The Chief Nurse explained
there were valid patient care concerns that necessitated the need to detail Complainant out of the
SCI Urology clinic.

Regarding claim 2.d., Complainant claimed that on January 25, 2016, the Nurse Manager detailed
Complainant from SCI to Spinal Cord Unit, 1GF, S&D department, pending an investigation.

The Chief Nurse stated that based on the statements from the staff in SCI Urology and the decision
to detail Complainant was based on Agency protocol.

The record contains a copy of a detail assignment memorandum dated January 25, 2016. Therein,
the Nurse Manager placed Complainant on notice that she would be detailed to the S&D
Department beginning January 26, 2016 “due to an allegation of a hostile work environment. the
detail assignment will stay in effect until the investigation is complete.”

Regarding claim 2.e., Complainant alleged that on June 17, 2016, she was rated as fully successful
for her FY16 performance evaluation when she should have been rated higher.

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The supervisor stated that she gave Complainant a “Fully Successful” rating for her FY16
performance evaluation. Specifically, the supervisor stated that the rating was based upon Nurse
III standards. Moreover, the supervisor stated that Complainant’s disability and prior protected
activity were not factors in her decision to give her a “Fully Successful” rating.

Regarding claim 2.g., Complainant claimed that her SCI Urology position was advertised while
she was out of the office on Family Medical Leave Act (FMLA).

The supervisor stated at that on January 26, 2016, Complainant was detailed from the Urology
clinic and the Urology clinic “functioned with a Urologist and a LPN for over 9 months and it was
impacting patient care.” The supervisor stated that on October 2, 2016, a Registered Nurse was
detailed to the Urology clinic for a period not to exceed 120 days. The supervisor stated that the
fact-finding investigation was completed around September 2016, and that Human Resources had
the full report and recommendations.

Further, the supervisor explained during the relevant period Complainant constantly emailed her
during the investigation and “exhibited rude and hostile behavior. The complainant alleged that
her personal items had been stolen from the Urology area, and I asked several times for a list of
items and even had the VA Police escort her to the area to collect her belongings. The complainant
was rude and unprofessional in front of the SCI Clinic staff on more than one occasion and I have
witness statements that were also sent to Human Resources to be added to the investigation file.
Immediately after the investigation meeting was held with the complainant, she came to my office
yelling, waving papers in hand and repeating statements that I had emailed to Human Resources
regarding her case.”

The supervisor further explained that the Chief Nurse went to check on her and other staff members
were trying to call her phone due to the disturbance, and “Complainant (after seeing [Chief
Nurse]), put her hands up in the air and stated ‘I’m not being hostile.’ The complainant asked me
to coordinate at time/date for her to collect her belonging and she left my office.”

As detailed above, Complainant has failed to provide sufficient evidence to call into question the
veracity of the explanations provided by responsible management officials or otherwise indicate
that these incidents more likely resulted from disability and retaliation. Complainant is unable to
meet her burden of proving a discriminatory or retaliatory motive regarding the incidents making
up her claim of a hostile work environment.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.3

3 On appeal, Complainant does not challenge the March 9, 2017 partial dismissal issued by the
agency regarding her claim that the Agency subjected her to discrimination in reprisal for
whistleblower activity. Therefore, we have not addressed this issue in our decision.
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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.

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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

July 23, 2019
Date