[Redacted], Cassy W., 1 Complainant,v.Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 9, 2021Appeal No. 2021000679 (E.E.O.C. Feb. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cassy W.,1 Complainant, v. Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000679 Hearing No. 410-2019-00066X Agency No. 200I-0508-2017105127 DECISION On October 30, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 30, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant period, Complainant worked as a Registered Nurse (Nurse II) at the Trinka Davis Veterans Village Community Based Outpatient Clinic, which reports to the Atlanta, Georgia VA Medical Center. On December 5, 2017, Complainant filed the instant formal complaint. Complainant alleged that she was subjected to harassment/a hostile work environment based on race (Caucasian), sex (female), color (white), age (over 40), 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. 2021000679 2 1. on August 7, 2017, the Lead Primary Care Physician (Physician 1) made the Complainant feel uncomfortable when he grabbed Complainant’s pen from her breast pocket to sign a document; 2. on August 10, 2017, Physician 1 “dressed her (Complainant) down” when she and her co-workers were laughing at a physician; 3. in August 2017, the Associate Nurse Executive failed to respond when Complainant reported she was being harassed and bullied by the Physician 1; 4. on November 9, 2017, Complainant received a merely “satisfactory” rating; 5. on November 16, 2017, the Nurse Manager denied Complainant’s previously approved leave for November 20, 2017 through November 24, 2017; and 6. on November 20, 2017, Complainant received a Written Counseling. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for Decision Without a Hearing. Complainant responded to the motion. On September 4, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final action implementing the AJ’s decision. The instant appeal followed. 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. 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. However, we have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant failed to establish a genuine dispute that required a hearing. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2021000679 3 To prove her 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, her race, sex, color, age and prior protected activity. Only if Complainant establishes both of these 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). Regarding claim 1, Complainant asserted that on August 7, 2017, the Physician made the her feel uncomfortable when he grabbed a pen from her breast pocket to sign a document. The AJ noted that Complainant had worked with Physician many times in the past. Physician 1 (African- American, male, over 40) stated that he does not recall the August 7, 2017 incident and “that’s what I told my supervisor. I know [Complainant] brought me a paper that I needed to sign. So, I didn’t have a pen and I just reached for the pen that she had on her person. I signed the document and gave the pen back to her. But, I don’t remember pulling out of her breast pocket…I don’t remember pulling anything out of her pocket. Usually I don’t do that. But, I’ve been known to do that as a colonel in the US Army and you have a soldier with a pen, and you grab the pen from the soldier and you sign whatever they got and then move on. So I don’t remember.” Regarding claim 2, Complainant alleged that on August 10, 2017, Physician 1 “dressed her (Complainant) down” when she and her co-workers were laughing at a physician. On August 10, 2017, Complainant was standing in the hallway with a named physician (Physician 2) in the doorway to her office. Both heard that a named physician would be out of work that day. Physician 2 began to dance and said, “do the [Acting Medical Director] dance.” Complainant laughed and then said Physician 1 told her to stop. Physician 1 denied that he “dressed her down” for this incident. Regarding claim 3, Complainant alleged that in August 2017, the Associate Nurse Executive failed to respond when Complainant reported she was being harassed and bullied by the Physician 1. On August 16, 2017, Complainant sent an email to the Associate Nurse Executive regarding “a concerning issue that involves work relations and one of our providers.” Complainant later named the provider involved as Physician 1. The next day, August 17, 2017, the Associate Nurse Executive discussed the report by telephone with Complainant. She asked Complainant to document the event described in her email. Five days later, on August 21, 2017, Complainant wrote to the Associate Nurse Executive and asked her if there was any update regarding her report. She replied the same day and informed Complainant that she and [the Acting Medical Director] were investigating the incident. After the Complainant made her report about Physician 1, Agency management adjusted Complainant’s assignments so that she would not cover Physician 1’s team. On September 6, 2017, the Associate Nurse Executive wrote to both Complainant and Physician 1 to inquire their willingness to engage in mediation regarding the subject of her report. Both Complainant and Physician 1 agreed. 2021000679 4 After securing both parties’ willingness to mediate, the Associate Nurse Executive asked Complainant to follow up with the facility EEO representative. However, the Associate Nurse Executive did not hear from Complainant any further on the subject. The Associate Nurse Executive (African-American, sex, over 40) stated that she gave Complainant “all the information she needed. She said she would get back to me. And she did not. So, I kept the original arrangement in place. And then again, like I said until - and we did not know [Complainant] was applying for - or planning on moving to another position. But she did end up transitioning to another position.” Regarding claim 4, Complainant claimed that on November 9, 2017, Complainant received a “satisfactory” rating on her performance appraisal which was lower than she believed was justified. The Associate Nurse Executive stated that she was the approving official regarding Complainant’s performance appraisal. She explained that she approved Complainant’s “satisfactory” rating. Specifically, the Associate Nurse Executive explained that a satisfactory rating is “coming to work, doing your job, and doing it well, managing your patients…but nothing to show that she had done actions that were above and beyond warranting a rating higher than satisfactory in her role.” Regarding claim 5, Complainant asserted that on November 16, 2017, the Nurse Manager (African-American, female, over 40) denied Complainant’s previously approved leave for November 20, 2017 through November 24, 2017. The evidence shows that when Complainant made her request for annual leave for November 20-24, 2017, she had a sufficient leave balance to cover that time. However, between the time that Complainant made the request and the dates of the leave, Complainant had called out sick, reducing her leave balance. Therefore, the Nurse Manager informed her that she did not have a sufficient leave balance to take the leave requested. She was advised that she could take leave without pay but chose not to. Regarding claim 6, Complainant claimed that on November 20, 2017, Complainant received a Written Counseling. According to the Nurse Manager, she issued Complainant a written counseling dated November 20, 2017, for not completing work in an acceptable manner. The record contains a copy of the November 20, 2017 written counseling in which the Nurse Manager placed Complainant on notice that she was not completing her work in a timely manner. The counseling stated that on November 9, 2017, the Nurse Manager met with Complainant “regarding the increased volume of patient complaints about TAP calls not being returned and view alerts not being addressed in a timely manner. I received four complaints in one week from patients who stated that they have called TAP numerous times with various requests and concerns but none have been received return calls from you, the PACT RN. The Nurse Manager also noted that many of Complainant’s view alerts and TAP notes were dated as far back as April 2017.”2 Moreover, the Nurse Manager informed Complainant that she would work closely “with the charge nurse who will offer guidance on how to work through and prioritize your daily work. 2 PACT is an abbreviation for Patient Aligned Care Team and TAP is an abbreviation for Telephone Advice Person. 2021000679 5 It is not the expectation that others will complete the work for you. The charge nurse will report to me daily on the progress and completion of your work.” In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her claim that her treatment was the result of her race, sex, color, age or prior protected activity. Here, the preponderance of the evidence does not establish that the supervisors involved were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final action, 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. 2021000679 6 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. 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. 2021000679 7 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 9, 2021 Date Copy with citationCopy as parenthetical citation