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

Equal Employment Opportunity Commission

Mar 18, 2021

Appeal No. 2020001118 (E.E.O.C. Mar. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Buffy L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001118 Hearing No. 450-2018-00330X Agency No. 2003-0549-2018100576 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 30, 2019, final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Medical Support Assistant, GS-0679-05, in the Agency’s North Texas Veterans Healthcare System in Dallas, Texas. On January 24, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of age (59) when: 1. on October 19, 2011, an employee (E1) yelled at Complainant about a patient that he was talking about; 2. on June 23, 2012, a Monitor Technician was belligerent to Complainant when she forgot to print him out a sheet on a new admission; 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. 2020001118 2 3. on June 23, 2012, another employee (E2) took Complainant’s chair and when Complainant asked for the chair back, E2 told her that she was not going to give it back until she was done with it; 4. on February 27, 2014, another employee (E3) called Complainant a “liar” in front of staff members, and accused her of moving her patients to another bed; 5. on August 8, 2014, the Charge Nurse yelled at Complainant, “What? What do you want?” when Complainant attempted to inform him about a new patient who was assigned to the unit; 6. on August 9, 2014, the Charge Nurse yelled at Complainant in front of staff members, “You did not answer my question, answer my question!” after he had asked Complainant if she had ordered the admit kits; 7. on March 5, 2015, an employee (E4) was rude to Complainant when she stated, “shut up, stop talking so loud,” while Complainant was speaking with a nurse on the telephone about a patient; 8. on July 8, 2015, a nurse interrogated Complainant about the practices of the nurses on 4C after Complainant had left him on hold on the telephone for approximately 10 minutes; 9. on September 17, 2015, an individual called the Clinic Coordinator and told her that Complainant would not help her after the individual had asked Complainant who the doctor on call was; 10. on October 27, 2015, an employee (E5) threw EKG sheets on Complainant’s desk while she was there and walked away without saying anything; 11. in February 2017, the Charge Nurse called Complainant “ignorant,” “stupid,” and accused Complainant of saying “fuck you”; 12. on March 14, 2017, the Charge Nurse called Complainant an “uncultivated person” and then told the Nurse Manager that Complainant was refusing to do her job; 13. on March 14, 2017, a Registered Nurse told Complainant that she was “incompetent” when Complainant told her that she did not have access to a patient’s clinic; 14. on March 15, 2017, the Charge Nurse spoke with everyone except Complainant; 15. on May 28, 2017, an employee (E6) said to Complainant in an angry tone, “Fine, I’ll do it myself . . . Did you put everything in the patient’s envelope? I’m sure you don’t know what you’re doing”; 16. on June 5, 2017, E6 was unprofessional toward Complainant when she rolled her eyes and sneered her nose at Complainant; 17. on September 16, 2017, a Nursing Assistant, two Registered Nurses, a Licensed Practical Nurse, and E6 yelled at Complainant for “not delaying patient care coming from the ER”; 18. on September 16, 2017, the MSA Supervisor issued to Complainant a written counseling for inappropriate behavior; 19. on September 18, 2017, the MSA Supervisor verbally counseled Complainant concerning the September 16, 2017, incident; and 2020001118 3 20. on September 19, 2017, the MSA Supervisor failed to provide to Complainant “copies of positive reports of contact statement submitted on her behalf.” After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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). 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. 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 has 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. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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: 2020001118 4 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). 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. 2020001118 5 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 March 18, 2021 Date