[Redacted], Allen M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2021000794 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allen M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000794 Hearing No. 570-2018-00292X Agency No. 2004-0688-2017102273 DECISION On November 5, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 6, 2020 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. On November 1, 2015, Complainant was hired as a Nurse Grade 2, Level 7, at the Agency’s VA Medical Center in Washington, D.C., subject to a 2-year probationary period.2 On March 27, 2017, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On May 3, 2017, Complainant filed a formal EEO complaint alleging he was subjected to discriminatory harassment based on race (Caucasian), sex (male),3 national origin (Hispanic), and in reprisal for prior 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. 2 On June 15, 2017, Complainant resigned during his 2-year probationary period. 3 During the investigation, Complainant withdrew sex as a basis. 2021000794 2 1. on or around February 28, 2017, the Nurse Manager changed Complainant’s work schedule (days off) without reason; 2. on unspecified dates, Complainant was improperly charged with Absent Without Leave (AWOL); 3. on unspecified dates, the Nurse Manager accused Complainant of patient abandonment and improper care, and he was improperly referred to the Summary Review Board; 4. on April 11, 2017, Complainant was detailed to triage while denied the opportunity to work overtime; and 5. on May 16, 2017, Complainant received his annual proficiency report and felt it was improper.4 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for Summary Judgment. Complainant responded to the motion. On October 2, 2020, the AJ issued a decision by summary judgment in favor of the Agency. Thereafter, the Agency issued its final order adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, August 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). 4 The Agency accepted claim 5 during its investigation after Complainant amended the instant formal complaint. 2021000794 3 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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). Based on the evidence developed during the investigation of the complaint, we concur with the AJ’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that on or around February 28, 2017, the Nurse Manager changed Complainant’s work schedule (days off) without reason. We note that despite the claim’s identification of the alleged date of discrimination as February 2017, the AJ noted that in his deposition, Complainant asserted that the schedule change occurred “sometime in 2016.” The AJ determined that Complainant’s initial EEO contact was therefore not timely raised with this claim in the context of a discrete act, but that it would nevertheless be considered in the broader context of Complainant’s complaint. The Nurse Manager (African-American, female) explained that managers are allowed to change employee days off “if the schedule does not allow for those days to be given.” She stated that Complainant wanted more than 5 days off straight, “which is forbidden under the current union agreement unless a special deal had been worked out, and [Complainant] had no such deal.” Regarding claim 2, Complainant alleged that he was improperly charged with AWOL. The AJ noted there was no dispute Complainant failed to specifically identify which dates he was marked AWOL until his Opposition to the Agency’s Motion for Summary Judgement. In his opposition, Complainant listed November 6, 2016 and February 27, 2017, as the two AWOL dates at issue. 2021000794 4 The AJ noted, however, the November 6, 2016 date was untimely raised with an EEO Counselor, similarly to the untimely contact regarding claim 1, as discussed above. As for the February 27, 2017 incident, the AJ noted Complainant failed to provide evidence that he was actually marked AWOL on that date.5 Moreover, the AJ noted that a review of the investigation of the report indicated several other instances in which Complainant was marked AWOL on other dates. He noted that on February 26, 2016, December 4, 2016, and November 28, 2016, Complainant was marked AWOL for leaving work early. The AJ further noted “the undisputed facts show [Nurse Manager] marked individuals of all protected bases different from Complainant AWOL regardless of position or shift.” The Nurse Manager noted that on February 26, 2016, Complainant left the facility at 1:00 a.m. instead of 5:00 a.m. as he was scheduled. She stated that a named nurse notified her that although Complainant told her that he would remain at the facility until 5:00 a.m. However, the nurse learned that Complainant was missing around 2:30 a.m. The nurse stated that after the staff notified her that Complainant actually left the facility at 1:00 a.m., she asked the Nurse Manager to charge Complainant with AWOL. The record reflects that a similarly situated comparator, a Health Technician (African-American, female) works the 11:30 p.m. - 8:00 a.m. shift like Complainant’s schedule. The Health Technician was charged with AWOL on February 21, 2017, during the time in which Complainant claimed the other employees in the department were not charged with AWOL, and that he was singled out. Regarding claims 3 and 4, Complainant alleged that on unspecified dates, the Nurse Manager accused him of patient abandonment and improper care, and improperly referred to the Summary Review Board and on April 11, 2017, and he was detailed to triage while denied the opportunity to work overtime. The AJ noted that all nurses, including Complainant, are subject to a 2-year probationary period. According to the Agency’s VA Policy-Probation Period for Nurses, “The Nurse Professional Standards Board (PSB) will evaluate performance of probationary employees or the second proficiency rating report of for summary review, consider employee’s services and conduct for continued employment or recommend any one or combination of the following: counseling, retention in the Service, Admonishment, reprimand or separation. The PSB reviews the performance of all probationary nurses, including any alleged deficiencies in their performance or conduct which can be subject to summary review. On March 22, 2017, Complainant was advised that he would be detailed out of his role as a Nurse in the Emergency Room pending the Summary Review. 5 It appears that despite the AJ assessment of AWOL incidents as not being timely raised with an EEO Counselor, the AJ nonetheless address such AWOL incidents in some detail, as follows. 2021000794 5 On May 8, 2017, the Clinical Director submitted a formal request for the Nurse Processional Standards Board (NSPB) to review Complainant’s probationary period. In her request the Clinical Director outlined serious alleged deficiencies and allegations related to drug diversion incidents regarding Complainant. The AJ noted while Complainant was never denied the opportunity to work overtime, once he was detailed to triage, such an assignment did not have a need for overtime work. Due to the serious allegations of drug diversion that Complainant was facing, the Agency was reasonable in its actions of detailing him to a less patient care-centered role, out of concern for the safety and well- being of its veteran patients. The Nurse Manager explained that Complainant had left a patient and left early without informing the day shift. The Nurse Manager stated that a transfer order came from another unit and Complainant believed that a team was on the way to move the patient. She stated that a named Registered Nurse had to call Complainant and “let him know we needed him. We had to get him to give his report to … the day shift nurse over the phone. Moreover, the Nurse Manager stated that Complainant denied it was abandonment and tried to blame the transfer staff.” Regarding claim 4, Complainant was informed on March 22, 2017, that he would be detailed out of his role as a Nurse in the Emergency Room pending the Summary Review. The Nurse Manager stated that the reason Complainant was on triage was because he was due to go before the Nursing Board and he was under investigation for drug abuse. She further stated that when a nurse is accused of drug abuse, the nurse is removed from patient-facing work. She stated further that “[T]riage is an [administrative] job where the nurse works the front desk and decides who needs what level of care, so it was safe for him to work there.” Furthermore, the Nurse Manager stated that overtime “is not a reward, it is given on a [basis] of when the agency needs it.” Regarding claim 5, Complainant claimed that on May 16, 2017, Complainant received his annual proficiency report and felt it was improper. The AJ noted that Complainant believed that he should have received a higher rating because he worked hard and received compliments for his work. The AJ stated, however, a review of Complainant’s performance justified the “satisfactory” rating that the Nurse Manager issued. Specifically, the AJ noted that the Nurse Manager stated “‘Complainant’s performance “with phrases such as, [Complainant] functions effectively in the role of the charge nurse,’ ‘he has a high level of technical skills,’ he ‘works hard’ and has ‘been recognized by the staff excellent performance.’” The AJ determined that there was no evidence in the record indicating that Complainant worked “at the higher levels of ‘high satisfactory’ or ‘outstanding.’” The Nurse Manager stated that before employees get a chance to see their employee performance review, they are asked for input. She stated that Complainant received “satisfactory” review for the November 2015-November 2016 period. The Nurse Manager noted while Complainant did not provide an input, he reviewed his performance review and “didn’t like it, and said that on his previous job he always got way better reviews.” 2021000794 6 Complainant claimed he was given outstanding or excellent reviews each time in his previous position. The Nurse Manager stated that Complainant refused to sign his performance review. Here, the AJ found that the evidence of record did not establish that Complainant was subjected to discrimination based on race, national origin, and prior protected activity. We concur with the AJ that the evidence developed during the investigation fully supports a finding that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management witnesses for the disputed actions were pretext designed to mask race or national origin discrimination or unlawful retaliatory animus. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021000794 7 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 February 22, 2021 Date