[Redacted], Darlene F., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionMar 5, 2021Appeal No. 2020004705 (E.E.O.C. Mar. 5, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darlene F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004705 Agency No. 2003-0549-2019101888 DECISION On July 24, 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 June 25, 2020, final decision concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse, Grade II (Nurse 2), at the Agency’s North Texas Healthcare System Medical Center in Dallas, Texas. On May 24, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and/or a hostile work environment/harassment on the bases of race/national origin (Hispanic), and reprisal for prior protected EEO activity when: 1. On a date unspecified, management disapproved Complainant’s application to have the Agency pay for her PhD, but approved a White co-worker’s application to have her PhD paid for by the Agency; 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. 2020004705 2 2. On May 22, 2013, an Associate Director of Patient Care Service (Director1) changed Complainant’s starting salary from the position of Nurse 3, Step 10, $103,896 to Nurse 2, Step 12, $85,193; 3. In June 2014, June 2015, June 2016, and June 2017, management failed to promote Complainant or rate her performance as Outstanding; 4. In the first months of 2015, Complainant’s immediate supervisor (Supervisor1) failed to take appropriate corrective action when Complainant reported bullying and mocking by co-workers when she spoke Spanish, instead he told Complainant to step out of the building to speak Spanish because a Black female co-worker complained that she was talking about her when she spoke Spanish, and when Complainant complained that a Black co-worker spoke loudly, played music loudly, and laughed loudly, Supervisor1 responded, “You have to deal with that because this is not management;” 5. In 2015 and 2016, management failed to take appropriate corrective action when Complainant’s co-workers told her to “shush” or “no Spanish;” 6. In 2016, a physician told Complainant she could change her accent; 7. In 2018, Complainant’s immediate supervisor (Supervisor2), the Associate Chief Nurse, and the Assistant Nurse Manager failed to take corrective action with Complainant reported the discriminatory and bullying behavior of co-workers and Supervisor2 told Complainant maybe she took the remark about her accent out of context; 8. On May 30, 2018, the Associate Chief Nurse refused to take the email evidence Complainant offered him concerning her hiring process and told her there was nothing he could do about her salary; 9. On September 12, 2018, an Associate Director for Patient Services (Director2) informed Complainant that it would have been illegal for the Chief of Nursing to override a salary decision made by the Board of Nursing, and she stated she would meet with the Associate Chief Nurse about the High Satisfactory rating, but she never got back with Complainant about either issue; 10. On September 27, 2018, Supervisor2 said that she was unable to change Complainant’s rating to Outstanding because it was already in the electronic official personnel folder (eopf) and they would not allow changes; 11. On January 15, 2019, management failed to promote Complainant to Nurse 3; 12. On January 15, 2019, Supervisor2 issued Complainant a rating of Highly Satisfactory which she felt was less than the Outstanding she deserved; and 13. On May 7, 2019, Supervisor2 informed Complainant that the document she wrote to recommend her Service Award Prize (SAP) was suspended because Complainant initiated an EEO complaint.23 2 In her formal complaint, Complainant alleged “[u]nequal pay/promotion opportunity due to discrimination for being Puerto Rican.” During the investigation, she self-identified her race as “Hispanic or Latino” and her national origin as “Puerto Rican.” 3 The Agency’s letter of acceptance indicates that at issue in claim (13) was an increase in step and salary. The report of investigation indicates that it was a SAP award. 2020004705 3 The Agency dismissed claim (3) as an independently actionable claim, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. It accepted claims (2), (11), and (12) as independently actionable claims and accepted the harassment claim, inclusive of claims (1) through (13).4 The Agency conducted an investigation, which produced the following pertinent facts: Regarding Complainant’s alleged basis of reprisal, Complainant attested that she initiated the current complaint on February 8, 2019 and noted that, on May 7, 2019, she was informed that the SAP that was submitted for her was suspended because of the current complaint. Complainant generally attested to her allegations as noted above. Regarding claim (1), she explained that, on September 26, 2014, she applied for the Employee Incentive Scholarship Program to have the Agency pay for her PhD and was not accepted into the program. She identified Black and White employees who received scholarships from the Agency to pay for education expenses and asserted that she was a highly qualified candidate for the program based on her academic credentials, work experience, and work performance. She alleged there was no justifiable explanation other than her being Hispanic, noting that she did not know of any Hispanic nurses who had received a scholarship from the Agency. The Agency’s Selection Committee Board members had no knowledge of this claim, were no longer with the Agency, or were otherwise unavailable to provide testimony. Regarding claim (2), Complainant attested that, after she had accepted the Agency’s job offer of employment for a Nurse 3, step 10 position with a salary of $103,896, she received an email informing her that Director1 had changed her salary and position to a Nurse 2, step 12 position with a salary of $85,193. Complainant attested that it was not communicated to her that the offer she accepted was a tentative offer that could be rescinded or changed after acceptance. She emailed Director1 about the change and he indicated that she would have the opportunity to be promoted to Nurse 3 in one year, based on her performance. Based on her belief that she was an outstanding nurse and should not have any problem being promoted, she accepted the offer. Director1 attested that, if the employee is a newly appointed registered nurse, the Nurse Professional Standards Board (NPSB) reviews the appointment package and determines the employee’s eligibility for the grade and step and their recommendation of the grade and step is sent to the Medical Center Director through the Associate Director, Patient Care Services for approval, and, once approved, the employee is offered that salary. Director1 attested that, for a brief period, he was the approving official, but he could not say if Complainant’s appointment occurred during this time. Director1 attested that he was unable to explain why Complainant’s salary was changed without a review of her NPSB boarding package. 4 The Agency accepted claim (2) as a timely independently actionable claim under the Lily Ledbetter Fair Pay Act. 2020004705 4 Regarding claim (3), Complainant attested that, in June 2014, June 2015, June 1016, and June 2017, management failed to promote her or rate her performance as Outstanding. She attested that she believed the rating she received, High Satisfactory, did not correspond to her level of performance and commitment to her job. The Acting HBPC Nurse Manager (Manager1) attested that she was responsible for Complainant’s rating in 2014 and the reason management did not promote or rate Complainant’s performance as Outstanding was because she and the Associate Chief Nurse agreed upon her job rating and it was not Outstanding. She explained that Complainant’s performance was not rated as Outstanding because she did not participate on a Home-Based Priority Care (HBPC) or facility-wide project or system design process that had a positive outcome for facility in 2014. Supervisor1 attested that he was unable to recall why management failed to promote Complainant or give her a rating of Outstanding in 2015 and 2016. Supervisor2 attested that she was Complainant’s rating manager during the review period of 2017. She attested that promotions go through the NPSB and immediate supervisors do proficiency ratings. She attested that Complainant received a High Satisfactory rating based on her performance, noting that the High Satisfactory rating corresponds to “has met all criteria, usually exceeds expectations by a substantial margin.” The Associate Chief Nurse explained that performance is measured against standards. He explained that managers complete the proficiency rating and promotions are managed by the NPSB. He explained the NPSB recommends promotions to the Associate Director, Patient Care Services and the Chief Nurse Officer approves. Complainant attested to her allegations in claims (4), (5), (6), and (7), relating to alleged bullying and disputes with co-workers over Complainant’s use of Spanish at work and Black employees’ loud behavior at work. Complainant alleged that her supervisor allowed non-Hispanic employees to make noise and did not take any managerial actions to assist her and applied management measures against her. While members of management did not recall or denied knowledge of many of Complainant’s alleged acts, Supervisor2 attested that, with respect to corrective action regarding Complainant’s allegations, EEO gave a presentation on civility in the workplace. Supervisor2 also indicated that she and the Assistant Nurse Manager spoke to Complainant about her interactions with co-workers and management also spoke to the physician who Complainant alleged made comments about Complainant’s accent. Regarding claim (8), Complainant attested that, on May 30, 2018, she approached the Associate Chief Nurse to discuss the hiring process and her salary, as well as her not having received a promotion, and he refused to keep copies of her emails during the hiring process. When asked about these allegations, the Associate Chief Nurse attested that he did not hire Complainant, noting that she was hired in a different department. 2020004705 5 Regarding claim (9), Complainant attested that Director2 told her that decisions made by the Board of Nursing are final and even the Chief of Nursing cannot override a salary. Complainant also attested that Director2 told her to meet with the Associate Chief Nurse about her concerns relating to her performance rating and that, after they met, Director2 would meet with the Associate Chief Nurse. Director2 attested that she did not engage in a conversation with Complainant regarding a decision made by her predecessor in 2013 and did not recall discussing the matter of overriding a salary. Director also attested that, regarding Complainant’s performance rating, a meeting was not required because Complainant had not followed the basic guidelines in communicating with her first through fourth level supervisors. Regarding claim (10), Complainant attested that, around September 27, 2018, she approached Supevisor2 about her rating, indicating that she disagreed with the rating of High Satisfactory because she worked hard during the year. She attested that Supervisor2 agreed that Complainant’s work was outstanding and told her that she would change the rating to Outstanding, but, several weeks later, Supervisor2 informed Complainant that she could not change the rating because it was already in Complainant’s electronic official personnel folder. Supervisor2 attested that, after talking with Complainant and reviewing the rating, she informed Complainant she would change the rating to Outstanding, but her rating had been submitted to the NPSB for review and it was contingent upon the status of the NPSB review. Supervisor2 attested that she was told Complainant’s performance evaluation could not be changed was because it had been sent to the Board. Regarding claim (11), Complainant identified Supervisor2, Chief Nurse, and Director2 as the managers responsible for her not getting promoted to Nurse 3. Supervisor2 attested that the NPSB was responsible for Complainant’s non-promotion. Supervisor2 attested that, based on the Board’s review, Complainant’s input, and her performance, the Board determined that Complainant did not show evidence of meeting the measures for Nurse 3. Supervisor2 explained that a nurse promotion is a Board action vs a proficiency rating by a supervisor. She explained that, in order to get promoted, a nurse must be found to meet all nine proficiency standards, and this is determined by the NPSB with anonymous peers. Director2 explained that the NPSB follows national guidance to determine whether a nurse meets the criteria as defined in the Agency’s policies. Director2 attested that her role was to review the Board recommendation and provide concurrence or non-concurrence. She attested that Complainant did not meet four of the required dimensions for promotion -Practice, Professional Development, Collegiality, and Research. Director2 attested that there were three Board members and a Human Resources technical advisor that determined Complainant did not meet the criteria for promotion, based on the Dimensions of Practice. 2020004705 6 Regarding claim (12) Complainant identified Supervisor2, Chief Nurse and Director2 as the managers responsible for her High Satisfactory rating, which was less than the Outstanding rating that Complainant felt she deserved. Supervisor2 attested that she was responsible for issuing Complainant a High Successful performance rating in January 2019. Supervisor2 explained that Complainant met all performance criteria and at times exceeded expectations by a substantial margin. She attested that Complainant fell in the High Satisfactory category based on her contributions to the program. Regarding claim (13), Complainant attested that Supervisor2 told her that she would submit a SAP request on her behalf to the Board, but, on May 7, 2019, Supervisor2 told her that the SAP request had to be dismissed because of Complainant’s EEO complaint. Supervisor2 attested that Complainant’s statements were not true and the award was not held. Promotion Consideration Memorandum, dated August 10, 2017, indicates that the NPSB reviewed Complainant’s qualifications and performance for potential advancement and, based on the documents in her Official Personnel Folder, the NPSB determined that Complainant met the Educational Requirement but did not yet meet the standards of Practice (Practice, Ethics, Resource Utilization), Professional Development (Education/Career Development), Performance), Collaboration (Collaboration, Congeniality), and Scientific Inquiry (Quality of Care, Research). Promotion Consideration Memorandum, dated August 28, 2018, indicates that the NPSB reviewed Complainant’s qualifications and performance for potential advancement and, based on the documents in her Official Personnel Folder, the NPSB determined that Complainant met the Educational Requirement but did not yet meet the standards of Practice (Practice, Ethics, Resource Utilization), Professional Development (Education/Career Development), Performance), Collaboration (Collaboration, Congeniality), and Scientific Inquiry (Research); but she did meet the standard for Scientific Inquiry (Quality of Care). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. In response, the Agency argues that its final decision clearly and thoroughly addressed the relevant material facts and correctly determined that Complainant failed to prove she was subjected to a hostile work environment or disparate treatment based on race, national origin, or reprisal. 2020004705 7 ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Dismissed Claim EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity (EEO) Counselor within forty- five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Here, the Agency dismissed claim (3) for untimely EEO Counselor contact. The alleged events in claim (3) occurred in June 2014, June 2015, June 2016, and June 2017, but the record shows that Complainant did not initiate contact with an EEO Counselor until February 8, 2019, which is well beyond the 45-day limitation period. Complainant has failed to provide sufficient justification for extending or tolling the time limit. Therefore, we find dismissal of the allegations in claim (3) was warranted. However, as explained below, they are still relevant to Complainant’s harassment claim. Harassment Claim Complainant has alleged the Agency subjected her to harassment, noting several alleged instances. To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. 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). 2020004705 8 In other words, to prove her harassment 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, national origin, or prior EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Complainant's harassment allegations can generally be described as relating to either managerial decisions, such as salary, fringe benefits, promotions, performance ratings, and awards, or allegations of being spoken to in a manner Complainant found offensive or otherwise inappropriate. With respect to her disagreements with managerial decisions, without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Additionally, with respect to Complainant’s allegations that she was spoken to inappropriately or in an otherwise displeasing manner, we find this also is insufficiently severe or pervasive to have altered the conditions of Complainant's employment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). Although Complainant had verbal disagreements or misunderstandings with other Agency employees, we find her allegations are insufficient to establish her claim of discriminatory harassment. Disparate Treatment Claims Complainant’s allegations in claims (2), (11), and (12) raise independent claims of disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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 Constr. 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 Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). 2020004705 9 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, her claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. With respect to Complainant’s allegations in claim (2), the Agency explained that for new registered nurses, the NPSB determines the employee’s grade and step upon reviewing of their onboarding package. We note that Complainant acknowledged that the initial offer was a tentative offer and she accepted the salary offered in the final offer. Regarding claims (11) and (12), the Agency explained that Complainant was not promoted because the NPSB determined she did not meet all of the required dimensions for promotion. The Agency also explained that Complainant was given a performance rating of High Satisfactory, based on her contributions to the program, noting that Complainant met all performance criteria and at times exceeded expectations by a substantial margin. Although Complainant alleges that she was discriminated against based on her race, nationality, and/or prior EEO activity, she has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to these claims. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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. 2020004705 10 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. 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. 2020004705 11 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 5, 2021 Date Copy with citationCopy as parenthetical citation