0120130802
02-23-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130802
Agency No. 200P-0612-2012100656
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 8, 2012 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.
BACKGROUND
During the period at issue, Complainant worked as a Intensive Care Unit (ICU) Registered Nurse at the Agency's Northern California System of Clinics in Mather, California.
On December 29, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of race (Asian), national origin (Filipino), and in reprisal for prior EEO activity when:
1. on October 6, 2011, she was charged Absent Without Leave (AWOL) for two hours of tardiness on October 3, 2011, and as a result, management deducted two hours of overtime pay from her paycheck instead of two hours of pay at the regular rate;
2. on October 26, 2011, her second level supervisor marked another nurse AWOL, and advised the nurse that Complainant was the reason for the other nurse being marked AWOL;
3. from October 7, 2011 through October 26, 2011, the second level supervisor, on two occasions, replied to Complainant via email to "meet with [Complainant's immediate supervisor]" regarding Complainant's concerns about the AWOL;
4. on October 28, 2011, when Complainant inquired about the party to whom she could complain about money being taken from her paycheck, the second level supervisor responded by explaining the role of the Office of the Inspector General but the second level supervisor did not provide any information regarding the appropriate office where she could pursue her claim;
5. on November 7, 2011, the second level supervisor sent an email to Human Resources and the union president stating that Complainant "also sent me numerous messages in a disrespectful tone and she needs to take ownership for the situation;" and
6. on November 16, 2011, the second level supervisor sent Complainant an email which explained that she was removing names of employees outside of management and the union from the supervisor's reply to Complainant's email. The second level supervisor further commented "as for your threat to file an EEO complaint, as you know, this is certainly your right to do so."
After the investigation of the claim, 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 (AJ). In accordance with Complainant's request, the Agency issued a final decision on November 8, 2012, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race, national origin and retaliation. The Agency concluded that Agency management articulated legitimate, nondiscriminatory reasons for its actions, and Complainant did not prove that the Agency's proffered reasons for its actions were a pretext for discrimination. The Agency also found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
On appeal, Complainant, through her representative, argues that the Agency erred in finding no discrimination. For instance, the representative argues that Complainant "is not the first employee to have ever come late to work and [supervisor] did not make such an effort to enforce the policies on previous employees. [Complainant] has been an exceptional employee one would question why [supervisor] first option was to punish an employee who has never been an employee who repeatedly comes to work late."
Further, the representative states "there was a history before the between [Complainant] and [supervisor] prior to [Complainant] filing her EEO case that was never addressed in the decision yet it clearly demonstrates a history of discrimination towards [Complainant] by [supervisor]...there are emails to corroborate and none of the evidence was investigated further nor addressed.
ANALYSIS AND FINDINGS
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, he 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).
In the instant case, Agency management officials articulated legitimate, nondiscriminatory reasons for the disputed actions in their statements taken during the investigation. Regarding claim 1, the ICU Nurse Manager acknowledged approval of Complainant's request for 2 hours of annual leave before learning that she had not followed proper procedures for reporting her tardiness on October 3, 2011. The Nurse Manager further stated that when the Chief of Nursing found out about Complainant's tardiness, she asked if Complainant "followed the proper channel, calling Nursing Supervisor for not being able to come on time. I had to go back to [Complainant] and asked if she called the Nursing Supervisor that she will be late because she overslept; she stated that she only called the ICU staff, who never notified the Nursing Supervisor or me. I informed my [Associate Chief of Nursing Services] of [Complainant] not notifying the Nursing Supervisor. After which, I verbally notified [Complainant] that she will be marked AWOL for the two hours for not notifying the Nursing Supervisor.
Further the Nurse Manager stated per Sections 2 "Annual Leave" and 2.c. "Unplanned leave" of Article 35 "Time and Leave," employees are required to notified the Nurse Supervisor/designee "for any kind of unplanned leave such as SL, CB, AL, EAL or not able to report to duty on time at all times."
Complainant's second level supervisor (supervisor) stated that according to the payroll department, an employee must work 40 hours prior to being compensated at the overtime rate. The supervisor stated that because Complainant had been charged with two hours of AWOL, she had not worked the requisite 40 hours to entitle her to overtime pay. The supervisor further stated that the two hours that Complainant worked to make up the 40 hours, should not have been paid at the overtime rate, and that was the reason why the two hours of Complainant's pay was deducted at the overtime rate instead of at the regular rate. Specifically, the supervisor stated that pursuant to payroll policy, employees "must work 40 hrs prior to being compensated at the overtime rate. Since [Complainant] was charged 20 AWOL, she did not work 40 hrs so 2 hrs of time was not calculating at the OT rate."
Regarding 2, the supervisor stated that a named nurse was charged with AWOL because she failed to notify the nursing supervisor about her tardiness.
Regarding claim 3, the supervisor stated that she referred Complainant to her immediate supervisor "after explaining her failure to follow directive or process to report off late directly to nursing supervisor during off-tours and weekends."
Regarding claim 4, the supervisor stated that she advised Complainant to speak with someone in payroll concerning money being taken out of her paycheck. The supervisor also stated that Complainant "would not stop sending me emails continuing about the AWOL charge. Her boyfriend sent me inappropriate emails stating that I was discriminating against [Complainant] since he previously filed EEO complaints with the VA for which I had no previous knowledge."
Regarding claim 5, the supervisor stated that she sent an email to Human Resources and the union president because Complainant "would not accept ownership of her failure to report off to a nursing supervisor." The supervisor stated that after Complainant told her that she was harassing Complainant, the supervisor "explained that the AWOL charge was a result of consequence of her refusal to report off to a nursing supervisor." Moreover, the supervisor stated that she asked Complainant to stop sending her emails and "to have any further discussions with her immediate supervisor [immediate supervisor]."
Regarding claim 6, the supervisor stated that she sent an email to Complainant explaining that she would be removing names of employees outside of management and the union in her response to Complainant's email. Specifically, the supervisor stated "I refused to include [Complainant's] boyfriend on any messages as it was inappropriate." The supervisor further stated that she did not have any discussions regarding the issue of pursuit of the EEO complaint process.
With respect to Complainant's claim that she was subjected to harassment and a hostile work environment, the supervisor stated "this ongoing, time-consuming process of both individuals [Complainant and named nurse] continuing to complain about AWOL charges is the result of both failing to follow supervisory directives. Since [Complainant] was so late for duty she delayed care of veterans in the Emergency Department since the nursing supervisor called the ICU to flat her to ED as they needed assistance. That is how the nursing supervisor became aware that [Complainant] was not on duty after he called the charge nurse in ICU who stated that she had not yet arrived on duty...[Complainant's] ongoing failure to accept responsibility for not following call-off procedure is the reason that she continues to blame me and file ongoing complaints as she threatened to do."
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were pretextual.
On appeal, Complainant argues that the investigator was inadequate. We have reviewed Complainant's appellate arguments but nonetheless determine that the investigator properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements 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.1
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
February 23, 2015
__________________
Date
1 On appeal, Complainant does not challenge the May 7, 2012 corrected partial dismissal issued by the Agency regarding one other claim (that she was subjected to harassment and a hostile work environment on the bases of race, national origin, and in reprisal for prior EEO activity when on October 26, 2011, the Agency violated the Master Agreement of her employee rights by the supervisor having discussed Complainant's AWOL with another nurse). Therefore, we have not addressed this issue in our decision.
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0120130802
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130802