0120161256
04-03-2018
Miriam B.,1 Complainant, v. Robert Leon Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Miriam B.,1
Complainant,
v.
Robert Leon Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161256
Hearing No. 540-2012-00197X
Agency No. 200P-0501-2012100275
DECISION
On February 9, 2016, 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 January 27, 2016, final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and 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.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate when she concluded that Complainant failed to establish that the Agency subjected her to a hostile work environment based on age and disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nurse 2 at the Agency's Medical Intensive Care Unit (MICU or ICU), New Mexico VA Health Care System facility in Albuquerque, New Mexico. On December 29, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (perceived, due to gross obesity) and age (59) when:
1. On or about February 17, 2011, the Nurse Manager (S1), and the Director Nursing Services (S2), instructed Complainant not to wear oxygen while on duty and denied Complainant's request for a light duty assignment, resulting in Complainant being off work until May 1,2011.
2. On May 2, 2011, Complainant received a 90-day detail to the Tele Health Unit.
3. On August 6, 2011, Complainant was returned to the MICU without advance notice and prior to the vacancies being filled.
4. In August 2011, when Complainant was supposed to be re-oriented to regular duties, no feedback or progress reviews were given, Complainant's requests for meetings were denied, and the individuals assigned to Complainant were re-directed to perform other duties.
5. In September 2011, the Assistant Nurse Manager (S3), constantly focused on Complainant's "charting" and frequently told Complainant how to do the job.
6. On October 17, 2011, S3 instructed Complainant how to handle a particular patient, invalidated Complainant's nursing skills, and implied that Complainant was lazy.
7. On October 17, 2011, S1 said she had received complaints about Complainant not wanting to assist with patients; and when Complainant stated that she was not accustomed to being dictated to, S1 responded, "[w]ell, you better get used to it."
8. On October 17, 2011, when Complainant expressed concerns about being micromanaged and targeted, S1 and S2 made comments such as management believes Complainant was not the same as before, that they were receiving complaints, that Complainant has mobility issues and cannot fit into elevators with patients, that Complainant rolls around in the chair and/or sits all day in a chair, that an extended orientation had already been given and additional orientation was necessary; and S1 also stated, "[w]e are not obligated to help you. If you don't do well you won't have a job."
9. On or about October 19, 2011, Complainant received a lowered annual performance rating of "satisfactory."
10. August 2, 2011, through October 2011, Complainant complained to upper management about negative comments that had been made, but her concerns were dismissed and the Agency failed to conduct an inquiry.
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). Complainant timely requested a hearing. After the Agency submitted a motion for a decision without a hearing, and the Complainant responded in opposition, the AJ assigned to the case concluded that the complaint did not warrant a hearing and issued the decision on January 6, 2016, finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Specifically, the AJ concluded that, with respect to her aged based claims, Complainant failed to present any evidence to support her allegations. There was no evidence that the younger nurses were treated more favorably, nor that the older nurses were mistreated.
While it was questionable whether Complainant was a qualified individual with a disability, the AJ assumed that Complainant had established such. Nevertheless, the AJ concluded that the Agency articulated legitimate, nondiscriminatory reasons for its actions and that the Complainant failed to show that the Agency's reasons were a pretext for discrimination. The AJ further concluded that there was no showing of sufficiently severe and pervasive actions to support a hostile environment claim.
Complainant based her claim of a perceived disability on morbid obesity. However, Complainant also has a condition of hypoxia, which is a condition where the body does not get enough oxygen and is characterized by a shortness of breath. In her investigative affidavit, she indicated that it may be related to pulmonary emboli (PE) that followed a number of respiratory infections, but that her doctors believed it could be rehabilitated. Complainant acknowledges that without the oxygen mask she is restricted in her ability to do her MICU tasks.
S1 and S2 informed Complainant that she would not be able to work in the ICU while wearing an oxygen mask. Management expressed their concern that Complainant could not perform the essential functions of an ICU Nurse because it was a Critical Care position. The ICU nurses were required to be able to: provide a rapid response, which required the ability to do a proper intervention on the patient, provide an aggressive CPR, move patients by lifting and turning them, the ability to use the stairs in order to quickly evacuate a patient, if necessary, and other similar duties.
Complainant avers that she was previously permitted to wear an oxygen mask in the ICU while working under another supervisor. However, S2 testified that at that time there was a need for a Telemetry Nurse to sit and observe the ICU's EKG and heart monitors, and that Complainant was assigned to this sedentary position on a temporary basis while wearing her oxygen mask. At the time of the alleged discriminatory events, there was no open Telemetry Monitor position.
Because her medical documentation indicated that she should wear an oxygen mask for an unspecified time-period, Complainant requested a light duty assignment. S2 informed Complainant that no light duty assignments were available at that time. Complainant was further informed that light duty assignments were for on-the-job injuries, unless there was a light duty position of need.
When a light duty vacancy became available in the Tele Health Unit, S2 offered Complainant the position on an interim basis until she was medically cleared from her hypoxia, and Complainant accepted the assignment. When Complainant was able to return to the ICU, management required that she undergo re-orientation, since she had been out of the unit for several months. As a result of the re-orientation, S3 was responsible for giving informal discussions with Complainant and others who had gone through the process concerning their strengths and weakness.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among a number of things, that she had previously worn an oxygen mask while working in the MICU and it never presented an issue; S3 forced Complainant to practice unsafe patient care by dictating the manner in which she was to care for one of her patients; two other nurses, approximately her age, had mobility issues for a time (related to leg issues), and were never counseled concerning their ability to respond to any MICU emergency.
Additionally, Complainant avers that upon her return to the ICU and concluding re-orientation, instead of management listening to her concerns that she was not being treated fairly by S1 and S3, she was counseled about reported complaints from staff that her perceived disability of morbid obesity was affecting her ability to perform her job. Complainant also states that the Agency should have offered her an accommodation of a light duty assignment concerning her hypoxia/oxygen mask situation.
Alternatively, the Agency reiterates that the AJ's analysis was correct and states that Complainant failed to offer substantive evidence on appeal sufficient to reverse the AJ's finding of no discrimination.
STANDARD OF REVIEW
In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision Without a Hearing
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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Here, Complainant has failed, either at the hearing stage or on appeal, to point to any particular evidence in the investigative file or other evidence of record that indicates such a dispute. Therefore, we find no error in the AJ's decision to adjudicate this case without a hearing.
Disparate Treatment
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 case 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).
The AJ correctly concluded that there was no showing that age was a factor in any of its actions. Moreover, assuming Complainant established a prima facie case of age and disability discrimination, there was no showing that the Agency's legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination. For instance, management's directive that Complainant could not wear an oxygen mask and properly perform her responsibilities as an ICU nurse were supported by the record. Complainant acknowledged the difficulties of performing the rapid response duties of a critical care nurse while not being able to breath. Furthermore, there was no showing that the decision that she not be permitted to wear an oxygen mask was based on her perceived disability of morbid obesity. Complainant did not provide persuasive arguments, below or on appeal, that the Agency's actions related to her wearing an oxygen mask in the ICU, the denial of light-duty assignments, or any other actions, were pretext for discrimination.
While Complainant expressly based her claim of perceived disability on the fact that she was morbidly obese, on appeal, she contends that the Agency failed to accommodate her hypoxia and temporary need to wear an oxygen mask. We note, however, that Complainant always described this medical condition as temporary and acknowledged that she had no restriction related to the hypoxia when she provided medical documentation clearing her to return to work without the oxygen mask. Accordingly, we do not find that she was denied a reasonable accommodation, Moreover, we note that the AJ's analysis assumed that she was a qualified individual with a disability, but that she failed to show pretext in the Agency's actions.
Hostile Work Environment Harassment
To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In short, 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, because of her age and disability. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
With respect to Complainant's claims concerning management's focus on her charting, how to do her job, being dictated to and micromanaged, her "satisfactory" annual performance, and the remainder of her generalized allegations, there is no showing that she was subjected to unwelcome or physical conduct rising to the level of a hostile work environment. That is, Complainant has not proven sufficiently severe or pervasive events to show that she was subjected to a hostile work environment. We find that the Agency's actions toward Complainant were ordinary workplace interactions, with no abusive conduct based on Complainant's protected classes.
We further find that the Complainant has not established a claim of harassment because she failed to present persuasive evidence that her age or perceived disability played a role in this matter. Moreover, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment regarding her disparate treatment allegations must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of harassment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's issuance of a decision without a hearing was proper. We further find that Complainant did not establish harassment/discrimination based on age, and disability. Accordingly, we hereby AFFIRM the Agency's final order.
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.
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. 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
_4/3/18_________________
Date
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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0120161256