Bonny R.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 11, 2016

0120142309 (E.E.O.C. Mar. 11, 2016)

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

Bonny R.,1
Complainant,

v.

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

Appeal No. 0120142309

Hearing No. 490-2013-00098X

Agency No. 200H-0626-2012103014

DECISION

The Commission accepts Complainant’s appeal from the August 18, 2014 final Agency
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.2 The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse in the
Medical Intensive Care Unit at the Agency’s VA Medical Center in Murfreesboro, Tennessee.
Complainant went out on Family Medical Leave Act leave from May 22, 2011 to July 15,
2011. When Complainant returned, she was detailed to the Acute Psychiatry Unit from July 1,
2011 through March 18, 2012, due to her work performance issues complying with the
Agency’s Bar Code Medication Administration (BCMA) policy and other performance
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.

2 Complainant prematurely filed the instant appeal prior to the Agency’s issuance of its FAD.
The Agency subsequently issued its FAD on August 18, 2014, curing Complainant’s premature
appeal.

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deficiencies. Complainant returned to the Medical Intensive Care Unit on a Performance
Improvement Plan (PIP).

On March 30, 2012, Complainant’s supervisor, the Nurse Manager (M1) issued Complainant a
proficiency evaluation rating her as “low satisfactory.” Among the performance deficiencies
noted, the report stated that Complainant experienced problems properly documenting patients’
conditions; Complainant failed to utilize her time appropriately to complete the duties assigned
to her; Complainant experienced several incidents of conflict between her and other medical
staff members; and problems often arose when her colleagues were attempting to teach or
redirect her. In addition, M1 instructed Complainant to attend classes at the Agency’s New
Employee Orientation related to BCMA policy and administration, and patient charting on the
Computerized Patient Records System.

On April 3, 2012, Complainant was initially designated as Charge Nurse, but a co-worker
volunteered to act in that capacity as she and the Assistant Nurse Manager (M2) believed that
Complainant did not wish to serve as Charge Nurse. Complainant acknowledged that she
declined the assignment once; however, she denied that she consistently refused to act as
Charge Nurse.

On April 19, 2012, the Chief Nurse issued Complainant a Notice of Proposed Three-Day
Suspension for engaging in unprofessional conduct. Complainant was involved in a loud and
disruptive verbal altercation with a co-worker (CW1) which was overheard by patients in the
Psychiatric Unit. Complainant did not submit a response to the proposed discipline. The
Notice noted that Complainant had previously been reprimanded for unprofessional conduct in
June 2009, and that the conduct at issue represented a continuing pattern of unprofessional
conduct. On April 19, 2012, the Agency Director issued a decision mitigating the proposed
suspension to a reprimand.

On February 4, 2013, Complainant received a Notice of Proposed Three-Day Suspension for
inappropriate comments. The Notice stated that Complainant asked a co-worker (CW2) to
witness medication waste from a syringe. CW2 refused because she could not verify the
contents of the syringe. Complainant responded “Let me shoot you up with this medication
and we will find out if it is the real medicine.” The Director subsequently issued a decision
mitigating the three-day suspension to a one-day suspension for inappropriate comments.

On August 20, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the basis of race (African-American) as evidenced by multiple
incidents including, inter alia, the Nurse Manager (M1) stated to Complainant that she was
going to be “under a microscope,” that they were going to watch everything she did, and
“don't play dumb ass with me;” M1 rated Complainant “low satisfactory” on her proficiency
evaluation; Complainant was required to attend New Employee Orientation before going back
to work on ICU; Complainant was given the most difficult assignments on ICU; M1 failed to
take action when a co-worker (CW1) assigned herself Charge Nurse duties although
Complainant was initially assigned to act in that capacity; the Health Center Director issued

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Complainant a reprimand; and, M1 laughed when Complainant informed him she had been
given the hardest assignments.3 Complainant later amended the complaint to claim that the
Agency discriminated against her when, on March 20, 2013, she was issued a proposed
suspension for three days (later mitigated to a one-day suspension).4

At the conclusion of the investigation of the complaint, the Agency provided Complainant with
a copy of the report of investigation (ROI) and notice of her right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency
issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that
the alleged incidents were not sufficiently severe or pervasive to establish a hostile work
environment. Further, the Agency found that there was no evidence that the conduct at issue
was based on discriminatory animus. As a result, the FAD found that Complainant had not
been subjected to discrimination or a hostile work environment as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she was subjected to a hostile work environment and
that management’s actions were severe and pervasive. For example, Complainant claims that
she was humiliated by being sent to New Employee Orientation. Complainant argues that
management’s statements about her work performance are not credible. Further, Complainant
contends that her comment (“Let me shoot you up with this medication and we will find out if
it is the real medicine”) that led to a one-day suspension was simply a joke and that
management punished her for having a dark sense of humor. Accordingly, Complainant
requests that the Commission reverse the FAD.

3 The Agency dismissed several additional claims for untimely EEO Counselor contact.
Complainant has raised no challenges to their dismissal on appeal or while the matter was
before the AJ; therefore, those claims will not be addressed in this decision.

4 On April 22, 2013, while the matter was pending before the AJ, Complainant filed a motion
to amend her complaint to include the suspension claim. The AJ granted the motion on
November 18, 2013, and both parties conducted discovery regarding the claim prior to
Complainant’s hearing request withdrawal. The Commission notes that the Agency
erroneously failed to address this claim in its FAD; however, the Commission finds that the
record was sufficiently developed during discovery for the Commission to address it in this
decision.

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ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a 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 to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
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).

Therefore, 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, race).
Only if Complainant establishes both of those elements, hostility and motive, will the question
of Agency liability present itself.

As Complainant chose to withdraw her request for a hearing, the Commission does not have
the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented.
Here, Complainant asserted that based on her race, management continuously subjected her to
a hostile work environment. The record supports the Agency’s finding that, even assuming
that the alleged incidents were sufficiently severe and pervasive, there is no evidence that
management’s actions were based on discriminatory animus. For example, M1 stated that he
rated Complainant as “low satisfactory” on her proficiency report based on input from other
managers and the chief nurse. ROI, Ex. B-2, at 15-16. S1 noted that Complainant had
multiple performance deficiencies, including issues with the BCMA policy and conflicts with
other nurses. Id. at 16, 19-20. Another manager noted that doctors had requested that
Complainant be removed from assignments because of inaccurate patient documentation and
inappropriate, argumentative interactions with her peers. ROI, Ex. B-5, at 8.

With regard to being sent to New Employee Orientation, M1 explained that management
requested that she attend the event as part of her improvement plan as she had been gone from
the unit for almost a year. ROI, Ex. B-2, at 25-27. M1 added that it was simply
management’s attempt to come up with something new that would help Complainant improve
her performance. Id. at 28-29. Next, M1 denied that Complainant was intentionally given the
most difficult assignments in the ICU unit, and explained that assignments were made by the
Charge Nurse of the previous shift. Id. at 30. Further, M2 stated that Complainant was
initially assigned to be Charge Nurse on April 3, 2012; however, she was aware that

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Complainant expressed on many occasions that she did not want to be Charge Nurse. ROI,
Ex. B-7, at 35-36. Knowing that Complainant did not want to be Charge Nurse, a co-worker
volunteered to be Charge Nurse. Id. at 36. Complainant later spoke to the co-worker about
the matter; however, she indicated that she did not want the position. Id. at 36-37.

Regarding the reprimand, the Chief Nurse initially issued Complainant a proposed suspension
for three days based on Complainant’s inappropriate professional behavior in front of a number
of in-house mental patients. ROI, Ex. B-4, at 26-27. Complainant was involved in a verbal
altercation with a co-worker that was loud and disruptive, and occurred in front of patients.
The Director ultimately decided to lessen the discipline to a reprimand because Complainant
had not been previously disciplined for similar conduct. ROI, Ex. B-3, at 10-11.

Finally, Complainant received a proposed three-day suspension for inappropriate comments
(“Let me shoot you up with this medicine and will find out if it is the real medicine.” Supp’l
ROI, Discovery Documents, Feb. 4, 2013 Notice of Proposed Three-Day Suspension
Memorandum. The co-worker interpreted Complainant’s comments as a threat and contacted
VA Police. Supp’l ROI, Discovery Documents, VA Police Investigative Report.
Complainant’s conduct violated the Agency’s rules and regulations and disrupted the operations
of the Medical Intensive Care Unit. Supp’l ROI, Discovery Documents, Agency’s Response to
Complainant’s Interrogatories, at 4. The Director subsequently lessened the discipline to a
one-day suspension. Supp’l ROI, Discovery Documents, March 1, 2013 Suspension Decision
Memorandum.

The Commission finds that Complainant failed to show that the Agency's actions were based
on discriminatory animus. The record reflects that the alleged incidents were more likely the
result of routine supervision, managerial discipline, personality conflicts, and general
workplace disputes and tribulations. In addition, to the extent that Complainant is alleging
disparate treatment with respect to her claims, the Commission finds that he has not shown that
the Agency's reasons for its actions were a pretext for unlawful discrimination. As a result,
the Commission finds that Complainant was not subjected to discrimination or a hostile work
environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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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

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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

March 11, 2016
Date