Drucilla Y.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 7, 2016

0120150245 (E.E.O.C. Sep. 7, 2016)

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

Drucilla Y.,1
Complainant,

v.

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

Appeal No. 0120150245

Agency No. 200H-0561-2014100370

DECISION

Complainant filed an appeal from the Agency’s October 7, 2014, final decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nurse at the
Women’s Treatment Unit, Mental Health and Behavioral Science Residential Unit, Agency’s
New Jersey Health Care System, in Lyons, New Jersey.

On January 23, 2014, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her national origin (Indian) and in reprisal for
her prior protected EEO activity under Title VII when:

1. On June 23, 2013, Complainant was issued a written counseling by the Nurse
Manager for an incident that occurred on May 7, 2013.

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.
0120150245

2
2. On September 26, 2013, Complainant was subjected to a performance review
triggered by inaccurate and unwarranted disciplinary actions initiated by the Nurse
Manager.

3. Effective November 1, 2013, Complainant was terminated during her probationary
period.

Complainant claimed that these actions constituted a hostile work environment.

In a partial acceptance dated March 5, 2014, the Agency accepted claim (3) for investigation as
an independent claim. Claims (1-2) were dismissed as independent claims on the grounds that
they were not raised with an EEO Counselor in a timely manner. However, claims (1-2) were
considered sufficiently related to the overall pattern of harassment and thus were included for
consideration along with claim (3) in the analysis of the harassment claim. 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 Agency determined that Complainant failed to prove that it subjected her to discrimination
as alleged. The record reveals that Complainant began working a two-year probationary
period on September 9, 2012. The Agency stated that on May 7, 2013, Complainant and
another nurse failed to dispose of an unused portion of a narcotic drug as required by hospital
policy. Following her shift that day, Complainant traveled to India for her mother’s funeral
and did not return until June 23, 2013. Upon her return, Complainant was issued a written
counseling by the Nurse Manager for the May 7, 2013 incident. The other nurse involved in
the matter also received a written counseling.

The Agency stated that on July 22, 2013, Complainant administered a drug to a patient.
According to the Agency, the drug was in the form of 60 milligram capsules. The patient was
supposed to receive 90 milligrams of the drug rather than 120 milligrams. Complainant
responded by opening one of the capsules and emptying half of the medication into an empty
capsule. Complainant gave the patient one filled and one half-filled capsule. The patient
reported Complainant’s handling of the matter. The Agency stated that Complainant defended
her action based on being understaffed on the day in question and on previous policy in a
different nursing position where she was allowed to adjust a patient’s medication. Complainant
further maintained that dividing the medication within a capsule is common practice in India.

The Agency stated that on July 23, 2013, Complainant confronted the patient who had reported
her action and attempted to give an explanation. The Agency noted that the patient asserted
that Complainant continued to explain despite her request that she stop discussing the matter.
The Agency stated that Complainant left but that the patient claimed she felt threatened. The
Agency further stated that on August 5, 2013, Complainant raised the issue again with the
patient and refused to provide the patient’s medication when requested.
0120150245

3

An investigation was conducted concerning Complainant’s actions. On August 27, 2013, the
Associate Director for Patient Care Services recommended proposing Complainant’s removal
and a review by the Nursing Summary Review Board. The Review Board determined that
Complainant had engaged in the actions alleged by the patient. According to the Review
Board, Complainant failed to adhere to prudent nursing practice and lacked insight into her
practice deficits. The Agency stated that on October 24, 2013, based on the recommendations
of management officials associated with the investigation and the Review Board, Complainant
was informed of her removal during her probationary period, effective November 1, 2013.

Complainant asserted that her prior EEO activity consisted of challenging the Agency when it
stated she was not qualified for the position because she did not become a citizen before
December 1998. Complainant stated she subsequently showed the Agency that this was
incorrect. Both the Associate Director for Patient Care Services and the Nurse Manager
indicated they were unaware of any prior EEO activity of Complainant prior to her
termination.

The Agency determined that Complainant failed to establish that she was harassed based on her
protected groups. The Agency noted that Complainant argued that the actions taken against
her were indicative of discrimination because all of the officials are Caucasian and she is the
only Indian. In support of her position, Complainant referenced two Caucasian nurses who
were not terminated when they failed to check on a patient during their shift and the patient
died. According to Complainant, one nurse received a poor performance review and the other
nurse was allowed to resign. The Agency stated that Complainant did not provide evidence to
demonstrate that either of the nurses committed any infraction or was treated better than her
when they committed the same or a worse infraction.

The Agency determined that it articulated legitimate, nondiscriminatory reasons for
Complainant’s termination. The Agency explained that Complainant was terminated because
she broke the capsule open to adjust the medication it contained; failed to recognize that her
action was inappropriate; continually defended her action; and confronted the patient who
reported her actions to another nurse. The Agency reasoned that Complainant did not submit
evidence to establish that she did not commit the infractions or that other nurses, outside of her
protected classes, also violated standard nursing practices involving distribution of medication,
but were treated better than her. Accordingly, the Agency found no discrimination.

CONTENTIONS ON APPEAL

With regard to the counseling notice that she received on June 23, 2013, Complainant denied
she was at fault for a leftover narcotic not being wasted. Complainant stated that the nurse
who worked the shift before her needed to have a registered nurse witness the wasting and this
nurse forgot about it and left. As for her handling of the medication where she broke a
capsule, Complainant states that the pharmacy did not supply the correct dose and she was
working alone. Complainant maintains that she was allowed to break capsules in other places
0120150245

4
where she worked. Complainant argues that she has experience dividing granules and powders
and that she explained to the patient what she did. As for her alleged confrontation with the
patient, Complainant maintains that the Agency fabricated this incident.

In response, the Agency argues that Complainant failed to establish a connection between her
prior protected activity and the alleged discrimination in the complaint. The Agency asserts
that Complainant’s termination was based on her violation of standard nursing practices
involving distribution of medication and her inappropriate interactions with the patient. The
Agency maintains that Complainant did not establish that other nurses who committed the same
infractions were treated better than her. With regard to Complainant’s hostile work
environment claim, the Agency asserts that the events at issue, either individually or taken
together, were not sufficiently severe or pervasive to rise to the level of a hostile work
environment. The Agency states that the relevant incidents concerned management decisions
regarding Complainant’s conduct and ability to perform her job.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must
show that (1) she engaged in protected EEO activity; (2) the Agency was aware of the
protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and
(4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't
of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request
No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

In the present case, the Agency articulated that Complainant was terminated due to her failure
to follow standard nursing procedures in the distribution of medication and also because of her
inappropriate interactions with the patient. We find that the Agency has articulated legitimate,
nondiscriminatory reasons for Complainant’s termination.

0120150245

5
Complainant attempts to establish pretext by arguing that other nurses committed worse
infractions and were not terminated. The record reflects, however, that these nurses did not
engage in the same conduct as that of Complainant. Therefore, we find that Complainant
failed to show that the Agency’s articulated reasons for her termination were pretextual.

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, her age
and prior protected EEO activity). Only if Complainant establishes both of those elements,
hostility and motive, will the question of Agency liability present itself.

Here, Complainant alleged that based on her national origin and prior protected EEO activity,
she was subjected to a hostile work environment as evidenced by several incidents, i.e., the
issuance of the written counseling, the performance review, and ultimately her termination.
Construing the evidence in the light most favorable to Complainant, the Commission finds that
Complainant has not shown she was subjected to a hostile work environment. Even assuming
that the alleged conduct was sufficiently severe or pervasive to create a hostile work
environment, Complainant failed to show that the Agency's actions were based on
discriminatory or retaliatory animus.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

0120150245

6
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 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.

0120150245

7
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

September 7, 2016
Date