[Redacted], Doloris W., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020000573 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Doloris W.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 2020000573 Agency No. HHS-IHS-0369-2018 DECISION On October 28, 2019, 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 September 23, 2019 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 Nurse Specialist - Trauma Coordinator, GS-11, at the Agency’s Chinle Comprehensive Health Care facility in Chinle, Arizona.2 On October 9, 2018, Complainant filed an EEO complaint alleging, between May 2018 and August 2018, the Agency subjected her to disparate treatment and hostile work environment 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 The record reveals, January 2008 to 2016, Complainant worked at the Agency as a Registered Nurse and, on July 24, 2017, returned from retirement to occupy the Nurse Specialist - Trauma Coordinator position. As of November 11, 2018, Complainant works as a Staff Nurse at the Agency’s Chinle facility. 2020000573 2 harassment on the basis of reprisal for prior protected EEO activity (claims of mistreatment to management and the instant complaint) when: 1. the Emergency Department Medical Director (S1) sent Complainant 49 emails over a four-day period questioning her truth and honesty, 2. on several occasions, S1 told Complainant to quit, 3. S1 was condescending to Complainant, blamed her for problems, and berated her in front of others, 4. Complainant had to perform duties outside of her position description, 5. on July 24, 2018, management withheld Complainant’s retention bonus, 6. she followed the chain-of-command, but upper management failed to address Complainant’s concerns, and 7. management denied Complainant’s request to withdraw her resignation for August 31, 2018. The Agency accepted Complainant’s complaint for EEO investigation. During the investigation, for (1), Complainant stated that S1 questioned her extensively regarding attendance at training, rather than seeking clarification. Complainant stated that she attended approved training that she needed for her position, and S1’s questioning was “demeaning and harassing.” She noted that S1 attended the same training. Complainant stated that she notified the Medical Clinic Director (S2) who told her “[S1] is very difficult to talk to.” As to (2), Complainant stated that S1 suggested she quit if she did not trust him and if she could not meet a deadline for a project. For (3), Complainant stated that S1 berated her in front of others regarding training hours and stated that he would audit her timesheet. Complainant stated that S1 performed an audit on timesheets and emailed everyone regarding his questions about her timesheet. Regarding (4), Complainant stated that S1 wanted her to work on committees, in the Nursing Emergency Room, and assisting with Nursing certifications and hospital-related education. Complainant stated that she had to ask S1 if he wanted her to focus on trauma-related matters or the workload outside of trauma. With regard to (5), Complainant stated that she had a history of working more than nine years with the Agency and one year in the position she encumbered so she should have gotten a retention bonus. Complainant stated that S1 did not inform her that her bonus was contingent on obtaining Level 4 Trauma designation. Complainant stated that S1 is very hostile toward her. For (6), Complainant stated that upper management did not address her concerns with S1. As to (7), Complainant stated, in July 2018, she, S1, and S2 met and S2 stated there was irreparable harm in the relationship between S1 and Complainant. S2 asked Complainant to resign and stated that he would assist her in finding another position. Complainant stated that she agreed to resign, but then wanted to withdraw her resignation so that she could have legal recourse and just in case another position was not located for her. Human Resources worked with Complainant to get a GS-10 Staff Nurse position, which is a lower grade and pay than her Trauma Coordinator position. 2020000573 3 For (1), Complainant’s immediate supervisor, S1, stated that he did not send Complainant harassing emails but sent her emails about her core work hours and completion of duties. S1 stated that staff expressed concern about Complainant not being present when she should and not completing work. Further, S1 stated that he inquired about several trainings he did not approve. With regard to (2), S1 denied ever telling Complainant to quit. As to (3), S1 stated that he asked Complainant to attend training and seminars directly applicable to her position duties. He stated that he inadvertently “replied all” to Complainant in an email chain and he apologized to her. Also, he stated he publicly and professionally informed Complainant to stop calling him derogatory names to colleagues as it was a disruption to the workplace and would not be tolerated. For (4), S1 stated that he did not ask Complainant to perform duties outside of her position description and her decision to do so negatively impacted her ability to focus on trauma- related duties. He stated that the facility needed to have its trauma credentialing, but it did not receive it because Complainant submitted subpar and incomplete documentation. S1 stated that his purpose was to ensure that the facility received proper credentialing so that it could provide trauma services. Regarding (5), S1 stated that Complainant did not receive the retention bonus because she neglected to submit required documentation for trauma designation for the facility, so they were unable to perform certain services and significant resources were wasted. With regard to (6), S1 stated that Complainant is the one who treats others with disrespect and hostility. He stated that Complainant calls him obscene names and complains about the workplace to others, which impacts morale. For (7), S1 stated that Complainant was not a good fit for the Trauma Coordinator position, and she was unhappy in the position, so management offered to find her a Staff Nurse position, which is what she was interested in. S1 stated that her moving to another position opened the position to other candidates. The Clinical Director, S2, stated that he does not recall stating that S1 was difficult to talk to and he investigated Complainant’s concern about emails and found an email chain between S1 and Complainant regarding performance and attendance matters. S2 stated that Complainant was unsuccessful in attaining Trauma Certification for the facility, which was a large part of her official duties. Further, he stated that he investigated Complainant’s concerns and was not aware of harassment or disparate treatment by S1. S2 stated that a retention bonus is discretionary to a supervisor and based on performance and retention in a position. (Complainant did not remain in the Trauma Coordinator position.) S2 stated, during an August 2018 meeting, Complainant indicated she was not interested in continuing work on the Trauma Certification application and tendered her resignation. S2 stated that he offered to find Complainant a clinical nursing position and extended her resignation date several times until she could be selected for a staff nursing position (S1 is no longer Complainant’s supervisor). S2 stated that the Trauma Coordinator position description was reclassified and made into two positions with additional duties for each, and Human Resources recruited for the positions. In pertinent part, the investigative record contains the following documents. ° An email dated May 29, 2018 from S1 to Complainant, apologizing for replying to group regarding her time and attendance. 2020000573 4 ° Letter dated June 26, 2018 from Arizona Department of Health Services to Agency’s Health System Administrator denying renewal of Trauma Certification. ° Letter from Complainant resigning from her Trauma Coordinator position effective August 31, 2018 and requesting to move to another position at an Agency facility. ° Email communications between Complainant and S1. At the conclusion of the EEO 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). 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 from Complainant followed. 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”). 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 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 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2020000573 5 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 the agency has articulated a legitimate, non-discriminatory 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). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. For (1), the Agency stated that Complainant’s first-level supervisor, S1, communicated with Complainant about her core work hours, completion of duties, attending training without his approval and other performance matters. As to (2), S1 denied ever telling Complainant to quit. Regarding (3), the Agency stated that it asked Complainant to attend training and seminars directly applicable to her position duties, and S1 inadvertently “replied all” to Complainant in an email chain, for which he apologized to her. For (4), the Agency stated that Complainant was not asked to perform duties outside of her position description and her choosing to do so negatively impacted her ability to focus on her trauma-related duties. The Agency noted that Complainant’s focus should have been obtaining the facility’s trauma credentialing, which it did not receive because Complainant submitted subpar and incomplete documentation. Regarding (5), the Agency stated that Complainant did not receive the retention bonus because she neglected to submit required documentation for trauma certification for the facility, so they were unable to perform certain services and significant resources were wasted. As to (6), S1 stated that Complainant is hostile and disrespectful and he had to tell her to stop calling him obscene names and complaining about the workplace to other employees, such that it impacted morale. S2 stated that he investigated Complainant’s concerns regarding S1 and found neither disparate treatment nor harassment. Regarding (7), the Agency stated that Complainant did not perform the trauma- certification duties and was unhappy in her position and working for S1, so management offered to find her a clinical nurse position. The Agency extended Complainant’s resignation several times so that Human Resources could assist her in getting an appropriate position. Effective November 11, 2018, Complainant began a Staff Nurse position at the Chinle facility. We find that Complainant failed to show that the Agency’s actions were based on discriminatory motives. Harassment 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 2020000573 6 (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). Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on reprisal. Even if we consider, individually and in total, the incidents occurred as alleged, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus. See Harris, supra. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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. 2020000573 7 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. 2020000573 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 June 7, 2021 Date