[Redacted], Anne F., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2020002183 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anne F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002183 Hearing No. 443-2020-00017X Agency No. 200J-0695-2018106506 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 11, 2020 final decision 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 decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (RN) II, Step 15, assigned to the Inpatient Spinal Cord Injury Unit (SCI) at the Clement J. Zablocki Veterans Affairs Medical Center in Milwaukee, Wisconsin. Complainant worked for the Agency from March 24, 2018, through October 19, 2018, when she was terminated during her probationary period. Complainant’s first level supervisor was the Program Manager for Spinal Cord Inpatient (RMO1) and her second level supervisor was the Spinal Cord Injury Associate Division Manager (RMO2). During the relevant time, the RN Nurse Educator (Educator) coordinated orientation 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. 2020002183 2 of nurses that were new to the Inpatient Spinal Cord Injury Unit. The Educator selected preceptors (instructors) for the new nurses and monitored their progress in orientation. Complainant alleged that while working for the Agency she was subjected to a hostile work environment by her first level supervisor, the Program Manager for Spinal Cord Inpatient (RMO1); her second level supervisor, the Spinal Cord Injury Associate Division Manager (RMO2); the Division Manager of Spinal Cord Injury (RMO3); the Medical Director (RMO4); the Nurse Program Manager, Palliative Care/Hospice (RMO5); the Educator; and Preceptor A. On February 4, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the basis of age (59) when: 1. On June 2018, she was notified that she would be boarded by the Nurse Professional Standards Board (NPSB) or have her license removed; on unspecified dates RMO1 yelled at her; on September 25, 2018, RMO1 did not offer her assistance with a project; and on unspecified dates, she was required to bring a doctor’s note to take sick leave. 2. On March 4, 2017, until October 19, 2018, her orientation was “not good” and she was not trained on how to be a nurse. 3. On July 9, 2018, RMO1 removed her from patient care and reassigned her to work administrative duties. 4. On July 24, and on August 6 and 7, 2018, her pay was docked when she was charged Absent Without Official Leave or Leave Without Pay. 5. On October 10, 2018, the NPSB recommended her separation from service with the Agency. 6. On October 19, 2018, she was terminated while on probation for failure to meet standards of clinical practice. 7. On an unspecified date, she was reported to Licensing Board(s). The Agency accepted claims (2) - (7) for investigation as independent claims and the harassment claim, consisting of events (1) - (7), was also accepted for investigation. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. On November 13, 2019, the AJ issued an Acknowledgement and Order Scheduling Initial Conference setting the initial conference via telephone to be held on December 5, 2019, at 12:00 p.m. The Order specified that failure to follow this order or other orders of the AJ could result in sanctions being imposed on the non-complying party. 2020002183 3 Complainant did not appear telephonically on December 5th, and consequently, the AJ issued an Order to Show Cause instructing Complainant to show good cause why she should not be sanctioned for failing to appear at the initial conference. The Order specified that Complainant had to respond by sending a statement via email to the AJ and a copy to the Agency no later than December 13, 2019. The Order explicitly stated that Complainant’s failure to comply with the Order would result in dismissal of the hearing request. Complainant did not submit a response to the AJ’s Order, and consequently, on December 16, 2019, the AJ issued an Order of Dismissal of Hearing Request and remanded the complaint to the Agency for issuance of a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency subsequently issued a final decision on September 11, 2020. The Agency’s final decision found that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant claims that she never received any order from the AJ informing her about the initial conference. Complainant notes that there was no change in her mailing address, email address, or telephone number. She states the first communication she received from the AJ was a telephone call on December 5, 2019, at 1:38 p.m. requesting her to show cause. Complainant provides a December 18, 2019 email she sent to the AJ in response to the AJ’s order to dismiss her case stating she was unaware of the initial conference on December 5th. In the email she stated the first communication received from the AJ was on December 5, 2019, at 1:38 p.m. Complainant stated she promptly contacted the Agency on December 6, 2019, to find out more about the matter. Complainant explained that she has had family and personal medical issues since December 6, 2019. Complainant apologized for missing the telephone conference and not responding to the order to show cause. Complainant does not challenge the framing of the complaint. In response to Complainant’s appeal, the Agency states the AJ’s dismissal of Complainant’s hearing request was proper as Complainant failed to appear for the initial conference and she completely failed to respond to the Order to Show Cause. The Agency notes Complainant failed to explain why she was unable to respond to the Order to Show Cause. Further, the Agency states it properly concluded there was no discrimination. ANALYSIS AND FINDINGS Standard of Review 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 (EEO MD-110), at Chap. 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 2020002183 4 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). The AJ’s Hearing Request Dismissal As an initial matter, the Commission will address the AJ’s sanction and whether it constituted an abuse of discretion. While a party charging an AJ with abuse of discretion faces a very high bar, the AJ’s authority to impose a sanction upon a party for failure to comply with her orders is not unlimited. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). To achieve a proper balance between deterring the noncomplying party from engaging in similar future conduct and equitably remedying the opposing party, it is necessary to apply the least severe sanction needed to respond the noncomplying party’s failure to show good cause for its noncompliance. Carolyn M. v. U.S. Postal Serv., EEOC Request No. 2019004843 (March 10, 2020). Factors pertinent to such tailoring of sanctions include: (1) the extent and nature of the noncompliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; (4) the number of times the party has engaged in such conduct; and (5) the effect on the integrity of the EEO process as a whole. Looking at the first and fourth factors, we find Complainant’s non-compliance with the AJ’s orders to be both extensive and repetitive. Complainant failed to respond to both the Acknowledgement and Order Scheduling Initial Conference as well as the Order to Show Cause. Although she claims to have never received a copy of the Acknowledgment and Order Scheduling Initial Conference despite there being no change in her mailing address, email address, or telephone number, we note the street and email addresses she listed in her formal complaint and used throughout the investigation were exactly the same as the street and email addresses printed on the certificates of service for all of the AJ’s orders. Her claim that she never received the AJ’s Acknowledgement and Order Scheduling Initial Conference despite providing that information not once but several times throughout the process appears disingenuous. In considering the second and third factors, we find Complainant’s failure to respond to the AJ’s acknowledgement order and order to show cause effectively halted the proceeding and prevented the Agency from engaging in the discovery process. Finally, when we take the fifth factor into account, we find that Complainant’s failure to respond to the AJ’s orders impugns the integrity of the EEO process as a whole. We therefore find that under the circumstances presented herein, the AJ did not abuse his discretion when he ordered the dismissal of Complainant’s hearing request. Linda D. v. U.S. Postal Serv., EEOC Appeal No. 2019004909 (Sept. 23, 2020) (upholding AJ’s dismissal of Complainant’s hearing request where Complainant did not respond to initial acknowledgment and scheduling order and order to show cause), request for reconsideration denied, EEOC Request No. 2021000803 (Feb. 10, 2021). Complainant also states that both she and her mother experienced serious medical issues beginning on December 6, 2019 (the day after the December 5th initial conference), which she claims delayed her response to the Order to Show Cause. 2020002183 5 Complainant acknowledges she had notice of the AJ’s requirement that she show cause for her failure to appear at the initial conference on December 5, 2019, and that she in fact contacted the Agency on December 6, 2019 to learn more about the matter. However, we note she failed to submit a response to the AJ’s Order to Show Cause prior to the December 13, 2019 deadline. Further, we note that in both her untimely December 18, 2019 email to the AJ and on appeal, Complainant failed to present any evidence to substantiate the alleged medical issues claimed. Thus, we find under the present circumstances, the AJ did not abuse his discretion when he ordered dismissal of Complainant’s complaint. Disparate Treatment Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (2), RMO1 stated that Complainant was assigned two preceptors in case one was out on leave. RMO1 noted that once they realized Complainant was having problems, they changed the preceptors thinking maybe she could learn better with a different nurse. 2020002183 6 RMO1 noted that Preceptor A was assigned to the role of scheduler which did not interfere with Complainant’s orientation. RMO1 stated that initially the Educator met with Complainant weekly and once they realized Complainant was having challenges, the meetings increased to daily. RMO1 maintained that the other nurses moved more quickly during orientation because they understood the requirements and demonstrated competency. RMO1 stated all the nurses received the same orientation and were measured against the same basic competency. Regarding claim (3), RMO1 stated that she removed Complainant from patient care and reassigned her to work administrative duties on July 9, 2018, due to unsafe patient care. She asserted that they extended Complainant’s orientation for a few weeks and had specific goals for her to meet, but Complainant did not meet the goals and they did not see any improvement. RMO2 stated that Complainant was reassigned because of concerns regarding unsafe practices. RMO2 states that Complainant came to her and asked to meet with her and RMO1 about an assignment Complainant was given to wash down the bowel chairs. Complainant felt the assignment was humiliating. RMO2 advised the intent was not to humiliate and switched Complainant to another assignment. Regarding claim (4), RMO1 stated that on July 24, 2018, Complainant was working so there should be no leave without pay for that day. RMO1 stated that on August 6 -7, Complainant was charged no pay because it was military leave and she did not provide orders within the 15 days required. RMO1 noted that Complainant provided the orders on September 26, 2018, which was over one month late and that is why she did not get paid. RMO2 stated that July 24, 2018 was a scheduled day to work so she got paid. RMO2 stated that for August 6 and 7, Complainant gave military orders far past the requisite 15 days. RMO2 noted that initially she would have been marked unpaid but then she was posted military leave, so a timecard correction was put in for that time and she did get paid. The record contains an email from RMO1 dated August 15, 2018, reflecting that Complainant was a no-call, no show on July 24, 2018, and that when she called in on July 25, 2018, she stated that she wanted to use sick leave and had no cell phone reception. The record also contains emails reflecting that Complainant was on military leave on August 6 and 7, 2018, but did not provide her orders until September 26, 2018. On September 27, 2018, RMO2 emailed Complainant that they would correct the days of August 6 - 8, 2018, and convert those days from AWOL to Military Leave. Regarding claim (4), we note that while the record shows that the Agency did submit some time adjustments, it is unclear if all time adjustments were ultimately made. Complainant does not argue that the time adjustments were not ultimately made. We find that although there is conflicting evidence in the record regarding the circumstances of the leave at issue in claim (4), we find that Complainant has not shown by a preponderance of the evidence that any decision regarding her leave at issue in claim (4) was motivated by discrimination. 2020002183 7 Regarding claim (5), RMO1 advised that once Complainant’s work performance issue went to the NPSB, she did not get involved. RMO1 asserted that prior to the NPSB, she gathered information and put together the documentation regarding the unsafe nursing practices. RMO5 was the Chair, Summary Review Board for NPSB. RMO5 stated that the Board took into consideration Complainant’s written statement and interview, the interviews of additional SCI staff, formal reports, failure to carry out ordered treatments and care delivery without assistance, failure to follow policies and procedures, and inability to successfully complete the orientation period and function independently as an RN on the Spinal Cord Injury Unit. He noted that after review of the evidence and discussion amongst the Board, a unanimous decision was made to recommend separation. Regarding claim (6), RMO4 stated that he made the decision to remove Complainant. He noted that numerous deficiencies in practice and conduct were identified between June 21, 2018 - August 7, 2018. RMO4 explained that he reviewed the evidence file associated with the deficiencies identified along with the NPSB recommendation and concurred that Complainant should be separating during her probationary period. Regarding claim (7), RMO1 stated that she did not report Complainant to the licensing board and was told that Human Resources would be doing it. The Human Resources Specialist stated that it is Agency policy to report to the State Licensing Board those licensed health care professionals, whether currently employed or separated, voluntarily or otherwise, whose clinical practice during employment so significantly failed to meet generally accepted standards of clinical practice as to raise reasonable concerns for the safety of patients. Complainant’s October 10, 2018 termination letter cited the relevant policy and advised Complainant in the event she is found not to meet the standards of care, she may be referred to appropriate State Licensing Board(s). Complainant alleged that her age was a factor in the identified actions because she is nearly 60 years old and had several decades of diverse nursing experience. She claimed that newly hired younger nurses with no professional work experience successfully completed their nursing orientation. Complainant alleged that SCI leadership assisted these nurses with their orientation. She claimed the younger and less experienced nurses made mistakes but were not disciplined or forced to defend their clinical practice at a NPSB. Upon review, we find Complainant’s assertions insufficient to show that she was treated differently than similarly situated nurses outside of her protected group under similar circumstances. We note that Complainant claimed that Comparative 1 (a younger nurse) was treated differently than her in that he received a smooth and dedicated nursing orientation, was permitted to reschedule his days to orient to the unit when he forgot to come to work on assigned days, was permitted to be excused from work to complete his military training, was not punished for calling in sick during his orientation, had consistent preceptors, and was paid for the military and sick leave used. RMO1 explained that Comparative 1 picked up things quicker than Complainant and completed his competency right away. 2020002183 8 RMO1 noted that Comparative 1 provided military orders before he went on military leave and did things “by the book.” There is no evidence that Comparative 1 engaged in the same conduct or performance deficiencies as Complainant was identified as committing. Thus, we find Comparative 1 is not similarly situated to Complainant. Further, we find Complainant did not indicate that any of the other younger nurses to whom she compared herself committed numerous incidents of unsatisfactory care to veterans or that they failed to successfully complete orientation after being granted an extension. Moreover, we note Complainant mentioned in her rebuttal statement that she believed her termination within a few weeks of her workers’ compensation claim was linked to the fact that she reported her injury to her chain of command and then followed up in filing a workers’ compensation claim. Thus, we find Complainant failed to establish that the Agency’s actions were a pretext for discrimination based on her age. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In the remaining incidents Complainant alleges she was notified she had to appear before the NPSB, RMO1 yelled at her, she was not offered assistance with a project, and she was required to bring a doctor’s note to take sick leave. Upon review, we find the alleged incidents were not sufficiently severe or pervasive, even if true, to constitute a hostile work environment. RMO1 stated and the evidence in the record reveals that the reason for Complainant having to go before the NPSB was unsafe nursing practices as a result of the concerns brought up by the Educator and other staff members. RMO1 noted the concerns were raised with Complainant as they happened but there was no improvement in Complainant’s performance. RMO1 also denied yelling at Complainant and did not recall denying Complainant assistance in the processing of her workers’ compensation forms. Regarding the use of sick leave, RMO1 stated she did not request documentation for days Complainant called in sick. However, she stated that on days that Complainant requested leave in advance to take a whole day off for an appointment, she did request documentation. RMO1 stated this was standard practice for employees to provide documentation when someone is requesting an entire day off to prove that the appointment spanned across the entire day. Upon review, Complainant has provided no evidence to support her claim that the Agency’s actions were motivated by her age. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2020002183 9 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. 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). 2020002183 10 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 May 24, 2021 Date Copy with citationCopy as parenthetical citation