Nannie D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 22, 20180120162466 (E.E.O.C. Aug. 22, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nannie D.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120162466 Agency No. 2001-0614-2015105106 DECISION On July 21, 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 June 28, 2016, final decision 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. 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 Critical Care Nurse Educator, VN-3, at the Memphis VA Medical Center (MVAMC), located in Memphis, Tennessee. On October 5, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and reprisal (prior protected EEO activity) 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. 0120162466 2 (1) on May 17, 2015, the Nurse Education Chief (S1) (prior EEO, Caucasian) denied her request to change her office;2 (2) on August 5, 2015, S1 assigned her four additional clinical areas (3F, 4F, 4E, and 5E) to train; (3) on August 7, 2015, S1 issued Complainant a written counseling for taking sick leave for family care; (4) on September 4, 2015, S1 requested that Complainant submit her annual proficiency, which are required 60 days in advance, greater than 120 days in advance; (5) on September 15, 2015, S1 and Complainant’s coworker (C1) (Caucasian) constantly interrupted Complainant’s Electrocardiogram (ECG) class; (6) on September 23, 2015, S1 assigned Complainant a Caucasian coworker’s duties when the coworker no longer wanted to perform the assignment; (7) on September 23, 2015, S1 interrupted Complainant’s training class to require Complainant to attend a fact-finding; (8) on September 23, 2015, during a meeting, S1 and C1 discussed Complainant’s work assignments and duty location with her without union representation; (9) on September 24, 2015, a coworker informed complainant that S1 and C1 tried to coerce two new nurses who attended Complainant’s ECG class to provide negative remarks against Complainant; (10) on September 24, 2015, S1 did not respond to Complainant’s request for information on the fact-finding that she was being subjected to; (11) S1 does not invite Complainant to attend all meeting; only Complainant’s Caucasian coworkers (C1 and C2) are invited to attend all meetings (no date specified).3 2 We affirm the Agency’s dismissal of Claim 1, for failure to contact an EEO Counselor within the time limits required by 29 C.F.R. § 1614.105(a). Complainant’s first contact with an EEO Counselor was August 25, 2015, which is beyond the 45-day limit. We also affirm the Agency’s dismissal of Claim 3 pursuant to 29 C.F.R. § 1614.107(a)(4), because Complaint had previously elected to raise the same matter in a negotiated grievance procedure. The record reflects that Complainant filed a grievance with respect to this claim before she filed a formal complaint. We note that Complainant does not dispute the dismissal of these claims on appeal. 3 Several claims alleged refer to the same incident. 0120162466 3 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 EEOC 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. FACTUAL BACKGROUND Complainant states that on August 5, 2015, she was assigned four additional units for which to provide training. She asserts that these units were previously assigned to C1, but that he no longer wanted to be responsible for them. Complainant also asserts that this assignment gave her a disproportionately high workload, while C1 had a significantly diminished workload. Complainant also found it unfair that C1 was given the duties of a Nurse Educator (C3) who had recently left her position. Complainant states that these same duties were again assigned to her on September 23, 2015, and that she was not allowed to have a union representative, as requested, during the meeting held to assign these tasks. In addition to the above claims, Complainant asserts that she was subjected to harassment. Specifically, Complainant asserts that S1 denied her request to move to an office space closer to where she spent most of her time. Additionally, Complainant states that on September 4, 2015, S1 instructed her to submit her annual self-evaluation 60 days earlier than what the VA Handbook requires. In addition, Complainant states that on September 15, 2015, C1 and S1 held up two of her students from returning to class on time. She believes this was disruptive to her class, and harassing. Finally, Complainant asserts that she was not invited to several all-staff meetings. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing 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, 441 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 0120162466 4 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). A complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected 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 the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000); Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318. 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997). The Commission’s policy on retaliation prohibits any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a complainant or others from engaging in a protected activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC No. 915.004 (Aug. 25, 2016). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) that 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). We agree with the Agency in finding that Complainant failed to present sufficient evidence to establish that S1’s legitimate, non-discriminatory/retaliatory reasons for the employment actions were a pretext or otherwise motivated by discriminatory/retaliatory animus. Specifically, S1 states that C2 had recently left her position in the Emergency Department (ED), and these duties were assigned to C1 because he recently completed the certification for the ED position. S1 further asserts that these additional duties were too much to add to C1’s workload without removing some of his other responsibilities. Therefore, she assigned some of C1’s tasks to Complainant. S1 testified that Complainant’s workload was not disproportionately high. S1 also asserts that union representation is not required for meetings regarding work assignments. C1 and a labor relations representative (HR) (African-American) corroborate S1’s testimony. We find the record devoid of evidence of pretext or discriminatory animus. With respect to the harassment allegations, S1 asserts that the MVAMC Space Committee denied Complainant’s request for office space because all Nurse Educators were placed in a centrally located office so that they could communicate easily and because there was no space available in the area Complainant requested. S1 also explained that the VA Central Office sent out a directive, requesting that all self-evaluations be turned in 120 days ahead of time, to ensure that proficiencies were conducted in a timely manner. She states that all Nurse Educators received this instruction, and denies that this event was intended to harass or discriminate against Complainant. 0120162466 5 With respect to the claim that two of Complainant’s students were held up on September 15, 2015, S1 testified that Complainant had asked to reschedule a morning meeting that day, due to needing to teach a class. However, S1 later found out that Complainant had not been teaching the class. She states she spoke with two students to understand what Complainant had been doing that morning. C1 states that these students told him Complainant had only briefly been present in their class, and he suggested they report this to S1. HR testified that she drafted disciplinary action related to this incident, following a fact-finding inquiry conducted by S1. Lastly, S1 asserts that all meetings for staff are announced through a list serve that includes Complainant’s email address. She further asserts that she has never excluded Complainant from any meetings that were appropriate for her to attend. We find the record supports S1, C1, and HR’s testimony. We also agree with the Agency in not finding the alleged conduct by S1 to be sufficiently severe or pervasive to alter the conditions of Complainant’s employment. Complainant has generally identified day to day management decisions that, while potentially unpopular, are not evidence of harassment. Moreover, there is no evidence to suggest that any of the actions taken by S1 were motivated by discriminatory or retaliatory animus. CONCLUSION Based on a thorough review of the record, and in the absence of contentions on appeal from Complainant, we AFFIRM the Agency’s final decision finding that Complainant did not establish that she was discriminated against as alleged. 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. 0120162466 6 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. 0120162466 7 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 August 22, 2018 Date Copy with citationCopy as parenthetical citation