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

Equal Employment Opportunity Commission

Apr 4, 2022

Appeal No. 2021000481 (E.E.O.C. Apr. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cami C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000481 Hearing No. 480-2018-0481 Agency No. 200P-0691-2017101640 DECISION On October 24, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 24, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND On June 26, 2016, Complainant was hired as a Psychiatric Nursing Assistant under a time- limited appointment (to end on July 25, 2017) at the Agency’s Acute Psychiatry Inpatient Unit, Greater Los Angeles VA Medical Center in Los Angeles, California. On March 17, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her based on race (African-American), sex (female), disability, and in reprisal for 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. 2021000481 2 1. From November 2016 until January 2017, the Nurse Manager (NM) chronically and abusively reminded Complainant of her tardiness in reporting to work. 2. Between November 2016 and February 2017, NM often isolated Complainant and demanded that she go to his office to discuss matters, instead of having discussions in open areas such as the breakroom or the nurse’s station. 3. On January 9, 2017, while Complainant was sitting in her assigned workstation, NM approached her and asked her, “Why aren’t you working?” NM then ordered Complainant to get up and work. 4. On January 9, 2017, NM decided to buy lunch for staff and Complainant was assigned to place the order at a local restaurant. When Complainant presented the NM with the charges, he made a joke by asking her if the restaurant would take food stamps. 5. On January 10, 2017, NM made several calls to Complainant’s personal cell phone on her day off and he left three voice messages. On one of the voice messages, the NM stated that technically it was not Complainant’s day off, so he could “bug” her. 6. On or about January 10, 2017, NM denied Complainant’s verbal request to have a flexible work schedule, to better support her special-needs son as well as to have the opportunity to further her education. 7. On February 2, 2017, NM summoned Complainant to his office and verbally counseled her for not responding to his morning greeting. NM informed Complainant, “When somebody says ‘Good Morning’ to you and you walk by and say nothing that is considered workplace violence.” NM also added that it was rude, inconsiderate, and disrespectful and that Complainant was ignoring her manager. 8. On February 5, 2017, the Registered Nurse (RN) started an argument with Complainant regarding care of veterans. During the argument, the RN yelled that Complainant needed “Psych Meds.” RN was also heard yelling and boasting in the breakroom saying to other employees, “I’m going to write [Complainant’s] ass up.” 9. On February 8, 2017, NM did not allow Complainant to immediately go to employee health after she reported that she had injured herself at the workplace. 10. From February 8, 2017 and ongoing, the Agency has failed to provide Complainant with a reasonable accommodation which would allow her to do her job after the workplace injury. 2021000481 3 11. On February 28, 2017, NM completed his portion of the CA-1 form (California Worker’s Compensation) regarding Complainant’s workplace injury which was approximately 20 days after he had reported that it was completed. 12. On April 12, 2017, Complainant received a letter of termination, effective April 23, 2017, from her “Time-Limited Appointment” position via UPS from the Office of Human Resources. After its investigation, 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 requested a hearing. The AJ issued a Motion for Summary Judgment. Complainant did not submit a response to the Motion. The AJ subsequently issued a decision by summary judgment finding no discrimination. The Agency issued its final order adopting the AJ’s summary judgement finding of no discrimination. Complainant did not submit a brief on appeal. 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). 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 for Complainant. 2021000481 4 Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is an individual with a disability. On February 8, 2017, Complainant injured her back. Because of her injury, Complainant sometimes felt pain when lifting objects. The physician completed forms releasing Complainant to return work mid-March 2017 with the restrictions of lifting no more than fifteen (15) pounds and working no more than four hours per day. The record reflects that Complainant essentially did not return to work after February 8, 2017 because of her injury. In sum, based on the undisputed evidence of record, the AJ correctly determined that Agency management did not deny Complainant a requested reasonable accommodation or otherwise failed to accommodate Complainant within her documented medical restrictions pursuant to its obligations under the Rehabilitation Act. The Agency offered Complainant a limited duty assignment, but she never returned to work. If she sought an accommodation beyond her limited duty assignment, Complainant never communicated that concern to the Agency. Harassment To prove her discriminatory harassment/hostile work environment 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, x, y or z. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). NM denied subjecting Complainant to harassment. Specifically, NM stated that during the period he served as Complainant’s supervisor, Complainant was often late for work, approximately two or three times per week. NM stated when he had a discussion with Complainant regarding her tardiness. He noted that Complainant listed various reasons why she was late, such as having a flat tire, household plumbing problems, the bus driver not showing up, and bad traffic. NM acknowledged that he did not start addressing the tardiness issue until approximately December 2016, when he noticed a pattern of chronic lateness with Complainant reporting to work late. Further, NM stated that he issued Complainant two written counseling dated January 13 and 25, 2017 relating to tardiness. 2021000481 5 NH stated that in regard to Complainant’s claim that between November 2016 and February 2017, he often isolated her and demanded her to go to his office to discuss matters, instead of having discussions in open areas, he received guidance from his Chief, who directed that discussions were to be held privately, to protect employees’ private information. Further, NM stated that most of their conversations took less than five minutes. Complainant asserted that on January 9, 2017, she was sitting in her assigned workstation when NM asked her why she was not working and then ordered her to get up and work. NM stated while he does not specifically recall the January 9, 2017 incident, he stated he had received a considerable number of complaints that employees would sit in the computer room and web-surf on the computers. NM stated that he therefore told various employees, and not only Complainant, to appear on the floor with the veterans, in case the veterans needed some assistance. Complainant asserted further that on January 9, 2017, NM decided to buy lunch for the staff and Complainant was tasked to place the order at a local restaurant, and when Complainant presented NM the charges he made a joke by asking her if the restaurant would take food stamps. NM denied making a comment about wondering whether the restaurant took food stamps. Moreover, NM stated he could not deny that he ordered lunch because he often ordered lunch for his staff. Complainant claimed that on January 10, 2017, NM made several calls to her personal cell phone on her day off and he left three voice messages, NM stated that he has no recollection of calling Complainant on her day off. Regarding Complainant’s claim that on or about January 2017, NM denied Complainant’s verbal request to have a flexible work schedule, to better support her special needs son and the opportunity to further her education, NM stated at that time, Complainant did not mention anything about having a special-needs son. He confirmed that Complainant expressed interest going to school and he recalled that she wanted every Friday and Saturday off. He later informed Complainant that the chief and Nurse Executive could not set up a schedule on which an employee received two specific days off every week. The Chief Nurse for Mental Health recalled Complainant had a discussion with NM about attending school and scheduling her schedule so she would be able to attend school. However, she stated that the Department of Nursing does not approve set schedules for nursing personnel because of the need to staff nurses for three shifts 24/7 to ensure nursing coverage. Complainant asserted that on February 2, 2017, NM was upset with Complainant because he had said “Good Morning” to her and she did not respond to him. NM stated that he noted Complainant sometimes reported to work with an aggressive attitude. He felt that he needed to address her behavior. 2021000481 6 With respect to Complainant’s claim that on February 5, 2017, RN started an argument with Complainant in regard to the care of veterans, NM stated that he was not present during the event occurred. He noted that there were reports of contact written. Specifically, NM noted in RN’s report indicated that Complainant was yelling and told the veteran that “his ass needed a shot.” As a result, Complainant had to be pulled away from the veteran and the staff removed the veteran from the dayroom and put in into a secluded room. Complainant asserted that on February 8, 2017, NM did not allow Complainant to immediately go to employee health after she reported that she had injured herself at the workplace. NM stated that he does not know exactly when Complainant injured herself. Specifically, NM stated there was a rapid response to an acute behavioral health issue which was on the third floor, and he went up to that area, because staff members required the use of wrist and ankle restraints. NM stated that he did not get back to his office until around 4:30 p.m. Furthermore, NM stated while Complainant did not to talk to him the next day concerning her injury, management attempted to gather information from Complainant, and he was unable to have a discussion with her about what had occurred on February 8, 2017. The Chief Nurse stated that she never received any doctor’s note or medical documentation regarding Complainant’s restrictions following her injury. In March 2017, the Chief Nurse stated that she received a call from the VA’s Office of Workers’ Compensation Programs asking about a light duty assignment for Complainant. She advised the VA representative that she could provide a light duty assignment but had no medical documentation regarding Complainant’s work restrictions. After talking with the VA representative, she received no information on Complainant’s restrictions and Complainant did not return to work. The Chief Nurse stated that she received a second notice from OWCP stating that Complainant could return to work on light duty. Complainant, however, never physically returned to work again to the knowledge of the Chief Nurse. With respect to Complainant’s claim that on February 28, 2017, NM completed his portion of the CA-1 form (California Worker’s Compensation) regarding Complainant’s workplace injury which was approximately 20 days after he had reported that it was completed, NM stated that management could not fill out the CA-1 form because Agency staff could not answer all relevant questions because staff members did not have the opportunity to talk with Complainant to get the “full story” on what had occurred. NM noted, however, that a union representative contacted management officials to urge them to take action on this issue. NM stated that management had a discussion with the HR representative and he suggested the officials to proceed with singing the form. Further, NM stated management contacted the union letting them know that Complainant had to filled out her part and sign the form. The image which emerges from considering the totality of the record is that there were conflicts and tensions with NM’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of 2021000481 7 Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that NM was motivated by discriminatory or retaliatory animus. The evidence of record fully supports the AJ’s conclusion that Complainant’s claim of harassment is precluded based on the findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 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 a complainant to prevail, he or 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. 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, non-discriminatory 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). 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, as here, 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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the termination of Complainant’s employment. Complainant stated that on April 12, 2017, she received a letter of termination, effective April 24, 2017, approximately three months before her term limited appointment was set to expire. The Chief Nurse stated that she proposed terminating Complainant due to her extended failure to come to work. Complainant had been off work since February 2017, and her doctor released her to return to work in mid-March 2017. 2021000481 8 However, Complainant had called off or was No Call/No Show every day since. Beyond her bare assertions, the AJ correctly determined that Complainant failed to prove, by a preponderance of the evidence, that this legitimate reason for her termination was a pretext masking any discriminatory motication. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. CONCLUSION We AFFIRM the Agency’s final order adopting the AJ’s summary judgment decision 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. 2021000481 9 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 April 4, 2022 Date