[Redacted], Cherie F., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 15, 2022

Appeal No. 2021001244 (E.E.O.C. Mar. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cherie F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001244 Hearing No. 540-2018-00024X Agency No. 2003-0442-2016105252 DECISION On December 10, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 19, 2020 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked as a Grade III Nurse Practitioner in Ambulatory Care Services at the Agency’s Medical Center in Cheyenne, Wyoming. On January 5, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on disability (PTSD) when: 1. From approximately October 4, 2015 thru August 5, 2016, the clinic's supervising physician (Dr) failed to compensate Complainant for 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 2021001244 approximately 959 hours of overtime she previously worked beyond her tour of duty. 2. On June 24, 2016, the clinic manager, denied Complainant's request for reassignment to an outpatient clinic. 3. On August 15, 2016, administrative officer (AO), and Dr violated Complainant's reasonable accommodation. 4. On August 16, 2016, AO and Dr discussed Complainant's medical condition with human resources (HR) officials. 5. On August 18, 2016, Dr instructed Complainant to complete backlogged work, and threatened her with disciplinary action and possible termination. 6. On August 22, 2016, Dr denied Complainant's overtime request. 7. From approximately October 4, 2015 thru August 6, 2016, Dr failed to compensate Complainant overtime she previously worked beyond her tour of duty. 8. On August 25, 2016, AO denied Complainant's annual leave request. 9. On October 25, 2016, Dr told Complainant that she was required to stay in the clinic for her entire tour, and if she did not do so, it would be considered fraud of government funds. 10. On February 1, 2017, the Complainant learned that a registered nurse gained access to her medical record without reason. After an 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 timely requested a hearing. On August 30, 2019, the Agency moved for summary judgment. On September 23, 2019, through her attorney, Complainant opposed the Agency motion. Over Complainant’s objections, on November 16, 2020, the AJ granted the Agency’s motion and issued a decision by summary judgment in the Agency’s favor. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant states that beginning in May 2016, she was working three twelve-hour shifts at the medical center in Cheyenne, and also worked an overtime shift at the Fort Collins Consolidated Base Operations Clinic (CBOC). Complainant describes herself as an expert on managing diabetes and stated that she had a demanding workload as a result. 3 2021001244 Complainant asserted that, initially, the Agency had permitted her to work 15-20 additional hours from home each week for administrative duties that she could not complete during regular office hours. At one point, management had announced Complainant’s permanent reassignment to the Fort Collins CBOC because its location was more convenient for Complainant. In August 2016, the Agency cancelled her transfer to the Fort Collins CBOC. Complainant asserts that at this time, the AO accused Complainant of inflating hours that she had claimed as overtime worked from home. Complainant denied seeking or receiving a reasonable accommodation. Rather, Complainant explained that she only discussed reasonable accommodation as a possibility so she could work additional overtime hours from home. Complainant alleges that, without her permission, AO and Dr scheduled her to attend a reasonable accommodation meeting with HR. Complainant stated that AO and Dr violated her privacy by referring her to HR. Complainant accused AO and Dr of falsely reporting to HR that Complainant fell asleep on duty and appeared tired to patients. When Dr threatened Complainant with discipline because she was overdue for charting her patient care encounters, Complainant suffered a severe panic attack as part of her military-sexual-trauma-related PTSD. Complainant further accuses a co-worker of inappropriately accessing her medical records. Finally, Complainant contends that out of retaliation or hostility, her supervisor denied her leave in a manner that forced Complainant to cancel scheduled recreational events. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 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. 4 2021001244 Here, Complainant has alleged that Dr and AO in particular made her working conditions intolerable. Therefore, we reviewed the merits of her claims in the context of a hostile work environment or harassment. To prove her 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 animus toward her protected status in this case having her disability (military-sexual-trauma-related PTSD). Only if Complainant could establish both of elements - hostility and motive - can the Agency be held liable for discriminatory harassment. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994); Britany C. v. U.S. Postal Serv., Appeal No. 2019001456 (May 29, 2019). As discussed below, the evidence of record supports the AJ’s determination that Agency witnesses provided valid reasons for the challenged personnel actions that were unrelated to Complainant’s disability. Overtime: Claims 1, 6 and 7 Complainant’s second-level supervisor, a Grade GS-13, Psychologist explained that Complainant frequently requested overtime credit for work that she had finished at home after duty hours. The Psychologist explained that Complainant’s requests were often denied because nurses were only authorized overtime to provide clinical follow-up care with patients, whereas Complainant had requested overtime to complete administrative duties that included completing patient charts that documented care encounters. Complainant’s colleague who was also a Grade III nurse confirmed that nurses at the Ambulatory Clinic were permitted four hours each week when they could complete administrative work. Complainant did not have a telework agreement that permitted her to do the four-hour administrative shift from home. When Complainant struggled more than her peers with completing her administrative work during her regular schedule, there was discussion about improving Complainant’s time management during duty hours. Complainant’s colleague denied that Complainant was granted overtime less than similarly-situated nurses. Further testimony revealed that instead of giving Complainant overtime to close-out overdue patient charts, Agency management instead provided overtime to other nurses so they could help complete Complainant’s patient care charts. Reassignment Claim 2 A human resources officer testified that in July 2016 a change of station SF-52 had been initiated that would have transferred Complainant to the Fort Collins CBOC on August 26, 2016. Before that date, however, the Complainant’s reassignment was terminated. The sworn statement from the human resources officer revealed that Complainant could not fill the nurse vacancy at the Fort Collins CBOC through a voluntary reassignment. Instead the Agency’s master agreement with the nursing union required such vacancies to be filled through announcement rather than directly via discretionary appointment. 5 2021001244 Medical Information Claims 3, 4 and 10 Regarding Claim 3 and Claim 4, Complainant denied that she officially requested a reasonable accommodation. Nevertheless, the record revealed that it was Complainant who had disclosed to her supervision that she was having difficulty at work because of PTSD. Although Complainant herself may not have filled out a request for a reasonable accommodation, the Agency initiated the process whereby Complainant’s declaration was construed as a reasonable accommodation request. As a result, Complainant’s management contacted reasonable accommodation personnel in HR who in turn sent Complainant a request for medical documentation in order to process an accommodation request for Complainant. After Complainant declined to provide the necessary medical documentation, therefore the Agency ceased processing a request for a reasonable accommodation for Complainant. Regarding Claim 10, the registered nurse did not deny accessing Complainant’s medical records. The registered nurse was the Cheyenne medical center’s employee health nurse. This employee health nurse accessed Complainant’s medical records because it was necessary to ensure Complainant’s employee health records were up-to-date and that Complainant was current on required vaccinations. Discipline and Leave Claims 5, 8 and 9 Regarding Claim 5, Complainant received counseling and warning that was justified by serious performance deficiency. Complainant did not deny and witnesses concurred that Complainant had fallen behind on closing-out approximately 127 patient charts. No other nurse had a backlog as large as Complainant. Testimony showed that these charts were expected to be closed within seven days of the patient encounters. Failing to close-out encounter records increased risk to patients’ health. Accordingly, it was appropriate for management to Complainant that her backlog of incomplete records was unacceptable and that she could be disciplined if she failed to reduce that backlog. Regarding denied leave in Claim 8, Complainant had requested leave that began on August 22, 2016 and ended on the August 25, 2016. Apparently because of a data-entry mistake, Complainant’s leave was only approved through August 24, 2016. After the Agency denied Complainant’s request to extend her approved leave through August 25, 2016, Complainant’s husband called on that day to inform the Agency that Complainant would be taking unscheduled medical leave. As to Claim 9, the Agency denied that Complainant in particular was cautioned that she had to complete each day’s scheduled tour of duty. The record showed that there was a general problem with doctors and nurses leaving work early without authorization and before all of their scheduled patients had been seen. The email message directing employees to stay for the entire tour of duty and failure to do so could be considered fraudulent, was not directed to Complainant, but to all care providers at the medical center in Cheyenne. 6 2021001244 In sum, events that Complainant claimed were discriminatory were legitimate personnel actions Although she worked in a demanding environment it was not objectively abusive to Complainant individually. Complainant failed to evidence that Agency actions were unlawfully motivated by animus against her disability. CONCLUSION 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: 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. 7 2021001244 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 March 15, 2022 Date