0120092047
09-14-2009
Henry G. Robinson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Henry G. Robinson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092047
Agency No. 200L-0586-2007100670
Hearing No. 420-2007-00209X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 26, 2009 final order 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.
Complainant alleged that the agency discriminated against him on the bases of race (African-American), sex (male), and in reprisal for prior protected activity when:
1. on December 5, 2006, he received a reprimand for insubordination after he questioned his supervisor about treating him differently than other Head Nurses, and for opposing derogatory and belittling remarks made by his supervisor about four black males in Nursing Services;
2. on December 27, 2006, he received a low rating on his Proficiency Evaluation; and
3. on February 1, 2008, he received a letter of reprimand.1
On August 26, 2008, a hearing was held before an EEOC Administrative Judge (AJ). After considering the testimony of the witnesses, the AJ issued a decision on February 6, 2009, finding no discrimination. Therein, the AJ determined that complainant did not establish a prima facie case of race, sex and reprisal discrimination. Further, the AJ determined regardless of whether complainant established a prima facie case of discrimination, the agency articulated legitimate, nondiscriminatory reasons for its actions. Finally, the AJ concluded that complainant did not prove, by a preponderance of the evidence, that the agency's proffered reasons for its action were a pretext for discrimination.
Regarding claim 1, complainant's supervisor (S1) was the deciding official to issue complainant a letter of reprimand on December 5, 2006 for insubordination. S1 stated that she assigned complainant to go to the MICU unit to refresh his telemetry skills and to orient his nursing staff assigned to MICU; however, complainant refused to comply. Specifically, S1 stated that on October 20, 2006, complainant was instructed to report to the MICU daily and work with the nurses who will be working in the telemetry unit when it opens; and to access their skills including their ability to assess and correctly intervene in various arrhythmias. S1 stated, however, complainant refused to go to the MICO and work with the staff that had already been hired for the telemetry unit. S1 stated that one of the reasons complainant was assigned to the MICU unit was "to refresh his telemetry skills because he had not been in acute care . . . I'm not sure how long, but at least a year probably. So I felt like he needed to refresh some of his skills."
Regarding the claim that complainant was issued a reprimand after he questioned S1 about treating him differently than other Head Nurses, and for opposing derogatory and belittling remarks made by his supervisor about four black males in Nursing Services, S1 denied the assertion. S1 stated "all three of the individuals that [complainant] made reference to, when their staffing was low, they were given patient care and [were] doing all the responsibilities a staff nurse would do on their unit. But he was not treated any differently." S1 acknowledged that she once did instruct complainant to inform a named RN that jeans were inappropriate in their ward. S1 stated that she was concerned that complainant "might get [RN] into a problem and he was acting head nurse and I thought I was protecting him, from . . . somebody saying something since he was in the head nurse role."
Complainant's third-level supervisor (S3) stated that she was the concurring official concerning complainant's reprimand. S3 stated that she consulted with Human Resources and Employee Relations concerning the disciplinary action, and there were repeated efforts to get complainant to follow instructions but that complainant refused to comply.
Regarding claim 2, S1 stated that she gave complainant a low proficiency rating based on his failure to perform his assigned duties as a Head Nurse for the October 1, 2005 to September 30, 2006 rating period. S1 stated "for instance, one of them says in his interpersonal effectiveness on core competencies for a head nurse, [complainant] - - the behavior is regularly coaches staff on their contribution to the agency mission in their performance. He never assumed the responsibility for the orientation of his staff while they were in the MICU nor did he work with them at all." S1 further stated "one of the things I refer to are the specific assignments that I gave [complainant] when he became the head nurse for telemetry. Those were very specific [and] . . . and those things were not fulfilled in the way that we specifically discussed them." S1 stated that she rated complainant as having no patient contact "because I didn't even consider that one contact as being significant."
S1 acknowledged she made one unintentional error on complainant's performance report by noting in his proficiency report that he was on a Performance Improvement Plan, but immediately corrected the error by drawing a line through it and initialing it upon being notified of that unintentional error. S1 stated that complainant's race, sex and prior protected activity were not factors in her determination to give him a low proficiency rating.
Regarding claim 3, the Nurse Manager (NM), also the acting ACNS Associate Chief of Nursing Service, testified that complainant was reprimanded for not following agency policy concerning the posting of schedules. NM stated that all nurse managers "are required to post a fair and equitable schedule." NM stated that complainant was reprimanded for "not following that practice to ensure that we did review the schedule, ensure that the skill mix that was fair, reducing overtime - - well, not skill mix because he doesn't have different levels of staff. He has all RN staff. But that we can reduce overtime as much as possible, know who's here and that it's fair."
The agency issued a final order dated February 26, 2009 implementing the AJ's finding of no discrimination.
On appeal, complainant argues that the AJ erred in finding no discrimination. Complainant argues, for example, the AJ did not address several disparate issues such as three named Nurse Managers not being disciplined for posting time schedules without approval and that he was disparately treated differently "than my non black nurse manager colleagues." Complainant argues that S1's actions "were designed to demote me to the level of staff nurse, and have me primarily provide patient care on wards MICU, 4CS, & 4CN. This behavior artificially demotes me, and totally disregards my position as a nurse manager."
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
As an initial matter, we find that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the AJ's finding of no discrimination. After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
September 14, 2009
________________________
Date
1 The record reflects that claims 2 and 3 were later amended to the instant formal complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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