Hattie K.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120171817 (E.E.O.C. Nov. 29, 2018)

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

Hattie K.,1
Complainant,

v.

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

Appeal No. 0120171817

Hearing No. 420-2016-00226x

Agency No. 200I05212016100526

DECISION

On April 25, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 28, 2017, final order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order adopting the EEOC Administrative Judge’s (AJ) finding of no
discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at
the Agency’s Birmingham Veteran Affairs Medical Center (BVAMC) in Birmingham, Alabama.
The Nurse Supervisor at BVAMC was Complainant's supervisor at the time of the alleged events.

On January 28, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of age (67) and reprisal for prior protected EEO activity under the Age
Discrimination in Employment Act of 1967 when:

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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1. On April 14, 2015, a physician asked her when she was going to retire and
stated that he wanted a younger nurse (RN1), assigned to him;
2. Since April 16, 2015, and ongoing, Complainant has been given "less
preferential work assignments" than younger nurses;
3. On April 16, August 11, and October 26, 2015, Complainant raised her
concerns about the "preferential work assignments" being given to RN1, yet
her Nurse Supervisor failed to address the matter; and
4. In October 2015, Complainant was "overlooked" for a Charge Nurse
position, which was ultimately given to a younger nurse.

According to the record, Complainant named a physician, the Nursing Supervisor, and the Nurse
Manager as the responsible management officials regarding her discrimination claims. After 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 AJ. On July 29, 2016, Complainant requested a
hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s
December 5, 2016, motion for a decision without a hearing and issued a decision without a hearing
on March 16, 2017.

With respect to Claim 1, the AJ noted that the physician at issue was an Internal Medicine
Physician at BVAMC who was not a supervisor or manager in Complainant’s chain of command.
He stated that during a casual conversation on April 14, 2015, Complainant told him that she was
67 years of age and, when he inquired, she said that she was not sure when she was going to retire
but it might be soon. He explained that, prior to this conversation, he was aware that Complainant
had been attending retirement classes at Birmingham VAMC. The physician later learned from
the Nurse Supervisor that Complainant was upset that he had asked her about retirement and she
thought that he was trying to force her to quit. He said that the Nurse Supervisor told him that
Complainant requested to be reassigned to another doctor and suggested that RN1 be assigned to
him. Finally, the physician denied knowing that Complainant had engaged in prior EEO activity
or that he had asked for a younger nurse.

The AJ considered the statements of the Nurse Supervisor who asserted that on April 15, 2015,
Complainant requested to meet with her regarding a "change in her working conditions." The
Nurse Supervisor reported that they met on April 16, and Complainant stated that the physician
was assigning her team work to RN1 instead of her and that he had asked when Complainant was
retiring. The Nurse Supervisor stated that she was unaware of Complainant’s age or prior EEO
activity.

The AJ also took into account that the Nurse Manager’s statement that, on August 11, 2015, while
making rounds in the clinic, Complainant told her that the physician had made an age-related
comment to her and that she had reported it to the Nurse Supervisor. The Nurse Manager said she
asked Complainant if the physician had made any comments since then and Complainant
confirmed that he had not. The Nurse Manager said she spoke to the physician who provided a
Report of Contact regarding the issue. The Nurse Manager denied knowing Complainant’s age or
about her prior EEO activity.
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Regarding Claims 2 and 3, where Complainant alleged that she has been given "less preferential
work assignments" than younger nurses such as RN1, the AJ found that the physician was only
responsible for assigning RNs responsibilities associated with the patients on the Patient Aligned
Care Team ("PACT") team. The physician stated the only assignments he provides to RNs are to
contact and discuss with patients about view alerts, secure messages, lab results, medical tests
results, medication refills/issues, and return appointments, completion of forms and letters,
checking in patients and assessing them. He said that he did not know what a RN considers
preferential or less preferential work. The Nurse Supervisor said that the Charge Nurse is
responsible for nurse assignments, she is not aware of what Complainant considers preferential
assignments, and that Complainant never stated anything to her about giving "preferential" work
assignments to RN1. She added that all the RNs have the same assignments and the same
expectation of performance but it varies from day to day based on how many staff is on duty. The
Nurse Manager confirmed the Charge Nurse makes the assignments and that the determination of
work assignment is based on staff availability and PACT guidelines.

As for Claim 4, where Complainant alleged that she was "overlooked" for a Charge Nurse position,
which was ultimately given to a younger nurse, the AJ found that the Agency had proffered
legitimate, nondiscriminatory reasons for its actions. The Nurse Manager stated that Complainant
was not considered for the Charge Nurse position because she was unable to complete her daily
assignments, which was an ongoing concern. The Nurse Manager explained that adding the duties
of Charge Nurse to Complainant’s regular duties would not have been beneficial to Complainant
or fair to the clinic since Management heavily relied on the Charge Nurse. The Nurse Manager
added that, unlike the RN who was chosen to serve as Charge Nurse, Complainant had never
expressed an interest in the Charge Nurse position.

Based on this information, the AJ decided that the Agency had presented legitimate,
nondiscriminatory reasons for its actions. Next, the AJ concluded that Complainant had failed to
present any evidence establishing that the Agency was motivated by unlawful consideration of her
age and EEO activity. At the outset, the AJ noted that Complainant did not submit an affidavit to
the EEO investigator during the investigation of her discrimination complaint or during the hearing
phase of her complaint. The AJ found that none of the alleged responsible management officials
were aware of Complainant’s EEO activity and thus the evidence did not support a reprisal claim.
The AJ found that Complainant presented no evidence from which an inference of discrimination
or reprisal could be drawn. The AJ found that Complainant’s allegation that the challenged events
created a hostile work environment for her was not supported by the record since she did not
establish that the Agency's conduct in Claims 1 - 4 was so severe or pervasive that it altered the
terms and conditions of Complainant's employment and she did not produce any evidence that the
Agency's actions created an abusive, intimidating, hostile, or offensive working environment. In
sum, the AJ found that Complainant failed to prove she was discriminated against. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected her to discrimination as alleged.

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ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the
outcome of the case. We find that the AJ properly issued a decision without a hearing in this case.

We have reviewed the record and find no reason to alter the findings of no discrimination. We
note, as did the AJ, that Complainant did not submit an affidavit during the investigation or hearing
phases of her complaint. We find that the Agency articulated legitimate, nondiscriminatory
reasons for its staff’s actions and that Complainant proffered no evidence demonstrating
discrimination. There is no evidence that any work assignments were made based on age or in
retaliation for prior EEO activity. Complainant has failed to show that the Agency’s reasons were
for its actions were a pretext for discrimination. Complainant has failed to show that similarly
situated individuals were treated differently.

CONCLUSION

We AFFIRM the Agency’s order adopting the AJ’s finding of no discrimination.

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.
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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. “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.

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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

November 29, 2018
Date