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

Equal Employment Opportunity Commission

Mar 8, 2022

Appeal No. 2022000271 (E.E.O.C. Mar. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cindy N.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000271 Hearing No. 460-2021-00098X Agency No. 2003-0580-2020102469 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 20, 2021 final order concerning an equal employment opportunity (EEO) complaint alleging 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Registered Nurse, VN-0, Step 11, at Michael E. DeBakey VA Medical Center in Houston, Texas. On May 27, 2020, Complainant filed an EEO complaint, which was amended, alleging that she was subjected to a hostile work environment based on national origin (Nigerian) and in reprisal for prior EEO activity when: 1. On June 19, 2019, and August 1, 2020, her first level supervisor (S1), a Nurse Manager, detailed her from Unit 1C to Unit 2D for an unspecified reason. 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. 2022000271 2 2. On January 3, 2020, S1 denied her leave request for 32 hours after she had initially approved the request. 3. On January 18, 2020, S1 failed to take action after she notified S1 that she was physically attacked by another employee (no name provided). 4. On January 22, 2020, S1 changed her tour of duty from 7:00 a.m. through 4:00 p.m. to 3:30 p.m. through 12:00 a.m. 5. On January 29, 2020, S1 directed her to put a patient to bed, even though the patient’s assigned nurse was present and unoccupied. 6. On February 11, 2020, S1 “belittled” her when S1 spoke to her as if S1 was “disciplining a child.” 7. On February 12, 2020, S1 slammed the door shut and yelled at her for allegedly not verifying doctor’s orders, and subsequently on the same day, S1 called the VA police alleging that Complainant threatened S1. 8. On February 14, 2020, S1 changed the charge nurse patient assignment schedule when S1 assigned her to care for ten patients while the other nurses were assigned eight patients. 9. On February 15, 2020, S1 denied her the opportunity to work 12 hours of overtime. 10. On February 18, 2020, S1 detailed her from her Registered Nurse duties to performing administrative duties. 11. On March 24, 2020, S1 issued her 2019 annual performance appraisal, rating her as not meeting standards, and precluded her from reviewing the supporting documents used for the rating or the opportunity to dispute and/or rebuff the rating. 12. On March 26, 2020, S1 failed to accurately document her contributions, which resulted in her not being promoted to Nurse 1, Level 3. 13. Between 2017 and 2020, her second line supervisor (S2), a Nurse Care Line Executive, failed to provide her the opportunity to be promoted due to not being left in one particular unit long enough, without a detail, to accomplish all of the areas of competency. 14. In 2018, S2 directed another nurse (N1), a bedside nurse for assigned residents, not to carry out N1’s duties and directed Complainant to perform N1’s duties and humiliated Complainant in front of Complainant’s colleagues when S2 falsely accused Complainant of not changing a patient’s wet diaper even though it was the responsibility of N1. 2022000271 3 15. On August 5, 2019, S2 initially notified her that she was being detailed to unit 2C for a patient being missing on the unit 1. 16. On February 18, 2020, S2 detailed her from her position as a Registered Nurse to performing administrative duties as a result of a false allegation made by S1. 17. Between February and August 2020, S2 and Complainant’s then first level supervisor (S1a) failed to provide her a copy of the conclusions of the administrative fact-finding. 18. On July 29, 2020, S1 notified her that the administrative fact-finding had concluded, and it found no wrongdoing upon her. 19. On August 3, 2020, S1 directed S2 to notify her that effective immediately, she was reassigned to 2D due to the “recent outcome of the fact-finding.” 20. On August 4, 5, 11, and 12, 2020, S2 and S1a directed colleagues to inform her to report to unit 2D or she would be charged absence without leave (AWOL). 21. On August 7, 2020, S1a sent her an email threatening to charge her AWOL. 22. On August 11, 2020, she was informed to report to unit 2D “as a result of EEO complaints.” 23. On or about August 21, 2020, S2 and S1a notified her that she was to continue performing administrative duties due to the conclusion of the fact finding. 24. On August 21, 2020, she learned that S2 and S1a processed her timecard, whereby she was only paid for 56 hours of the 80 hours she worked. 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 requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. Regarding claim 1, S1 indicated that Complainant was not detailed to Unit 2D but instead Unit 2C because she forcefully bumped another employee (E1). E1 was also detailed to Unit 1D pending investigation of the incident. After the investigation, both employees received a stay away letter and returned to Unit 1C. Regarding claim 2, S1 indicated that she did not deny 32 hours leave as alleged; rather when Complainant requested 32 hours of annual leave at issue, Complainant included holiday leave of 8 hours for January 20, 2020. Thus, stated S1, she had to deny and enter the leave in the Agency’s time and attendance system in order for Complainant to get paid. 2022000271 4 Regarding claim 3, Complainant and another employee (E2) were involved in a physical assault on January 18, 2020, to which the Agency police responded. Complainant indicated that she was pulling up a window blind which hit E2’s head; and E2, in response, hit Complainant on her neck. The Agency conducted a fact-finding which found both employees were disruptive, loud, and fighting with each other. Both Complainant and E2 were given disorderly conduct tickets by the Agency police. Regarding claims 4, 5, and 6, S1 indicated that she did not change Complainant’s schedule on that day. Complainant was already scheduled to work 3:30 p.m. to 12 a.m., published four weeks before. S1 further indicated that as a Registered Nurse, Complainant was primarily assigned to an identified veteran patient. S1 denied talking to Complainant as alleged. Regarding claims 7, 10, and 16, there was an incident between S1 and Complainant on February 12, 2020. Specifically, S1 noticed over 40 doctor’s orders which were not verified or secured to protect patient privacy over the past 24 hours. S1 thus spoke to all of the night shift nurses regarding the situation and they were all receptive. S1 requested Complainant go and speak with the Assistant Nurse Manager for counseling on patient record documentation. Complainant then started shouting at S1 and kneeled on the floor and while getting up, Complainant shouted at S1 and raised her hand as if to hit S1. S1 stated that she felt threatened by Complainant and called the Agency police. S1 subsequently reported the incident and a fact-finding was conducted. Pending the fact-finding investigation, Complainant was temporarily reassigned to report to another unit on February 14, 2020. S1 indicated that she had no contact with Complainant or any involvement with Complainant’s work after the January 12, 2020 incident. Regarding claims 8 and 9, S1 indicated that Complainant did not work in her Unit 1C and she did not change Complainant’s workload or deny Complainant’s overtime. The Agency indicated that on February 14th, Complainant worked an eight-hour shift and four hours of overtime; and on February 15th, she did not work and was not entitled to work overtime. Regarding claims 11 and 12, Complainant was rated “Satisfactory” in her Proficiency Reports for both 2019 and 2020. Complainant indicated that she could have received a higher rating (i.e., High Satisfactory or Outstanding) for her 2019 appraisal if her 2018 project was included. Complainant however did not describe the specificity of the subject project or whether this exceeded expectation of her required performance standards. Complainant’s 2019 and 2020 Proficiency Reports reveal that she performed her duties by applying the nursing process, being responsible and accountable for individual nursing practice, providing leadership, and maintaining professional relationships with patients, families and employees. However, the Proficiency Reports do not reveal that Complainant’s performance exceeded her position performance expectations by a substantial margin (for High Satisfactory rating) or to an exceptional degree (for Outstanding rating). S1 indicated that she had no involvement with Complainant’s promotion to Nurse I, Level III; rather it was a Nursing Professional Standard Board that denied the promotion for her failure to meet ethical standards. 2022000271 5 Regarding claims 13 and 14, S2 stated that Complainant was previously transferred from Nursing Unit 1D to 2D in order to enhance her competency and clinical skills and she then later transferred from 2D to 1C upon her request. S2 did not remember the incident involving N1 and S2 denied humiliating Complainant or assigning certain duties based on discrimination. Regarding claim 15, S2 indicated that Complainant was notified of a detail pending investigation of a missing patient. But the detail was rescinded within 24 hours because Complainant was not on duty the day in question. Regarding claims 17, 18, 19, and 22, the record indicates that the Agency conducted a fact- finding investigation of the February 12, 2020 incident, interviewing five individuals related to the incident, including Complainant and S1. On June 5, 2020, the fact-finding investigators submitted a memorandum concluding that Complainant was difficult to manage; she should not be supervised by S1; and she was causing tension on the unit, not only with S1 and S1’s Assistant Nursing Manager, but with other staff. The investigators recommended Complainant be removed from Unit 1C. Based on this recommendation, Complainant was notified of her reassignment to Unit 2D from Unit 1C effective August 2, 2020. Complainant however did not report to Unit 2D on August 2, 2020, and her reassignment was subsequently extended for at least 30 days, as described below. Regarding claims 20, 21, 23, and 24, on August 7, 2020, a Human Resources (HR) Specialist informed management that pursuant to the collective bargaining agreement, the union required a 30-day notice for Complainant’s reassignment. The HR Specialist also recommended Complainant not be charged with AWOLs for not reporting to Unit 2D since August 2, 2020. Based on this recommendation, Complainant’s reassignment, which was effective August 2, 2020, was rescinded. On August 12, 2020, Complainant and S1a signed a memorandum wherein Complainant’s temporary reassignment, which was initiated on February 14, 2020, was extended for at least 30 days pending HR review; and Complainant would stay away from Nursing Unit 1C and S1. Complainant was ultimately not charged AWOL as alleged and continued to perform administrative duties under her temporary reassignment. Complainant’s timesheet was corrected for August 3 and 4, 2020, and she was paid for the 24 hours the next pay period. The AJ found that Complainant failed to proffer any evidence to rebut the Agency’s legitimate reasons for its alleged actions or to show the alleged actions were motivated by discrimination as alleged. The AJ further found that all claims, considered individually or collectively, failed to rise to the level of a severe or pervasive harassment implicating discrimination as alleged. 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). 2022000271 6 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: 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). 2022000271 7 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. 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. 2022000271 8 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 8, 2022 Date