[Redacted], Ellen L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 14, 2021Appeal No. 2020002256 (E.E.O.C. Apr. 14, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellen L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002256 Hearing No. 430-2017-00533X Agency No. 200405902017100264 DECISION On January 16, 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 December 18, 2019, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Nurse Practitioner at the Hampton Veterans Affairs Medical Center (VAMC) in Hampton, Virginia. Person A, the Acting Chief of Primary Care Services at the Hampton VAMC, was Complainant’s first level supervisor. Person B was the Nurse Manager for her unit. Person C was the Administrative Officer. In 2016, Person A began receiving complaints from Complainant’s Veteran patients and her colleagues about Complainant’s clinical practice. Person A raised the complaints with the Chief of Staff. 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. 2020002256 2 In the summer of 2016, the Chief of Staff brought the complaints to the Hampton VAMC’s Medical Executive Board, which oversees concerns about competency and credentialing and privileging issues of licensed independent providers at the medical center. The Service Chiefs had unanimously stated they felt there were some patient safety issues and that Complainant should be immediately removed from patient care due to her lack of following through with patient treatment. However, it was determined that the Medical Executive Board was not the appropriate venue to address issues regarding the competency of a Nurse Practitioner, thus the matter was referred to Human Resources (HR). The HR Specialist (HRS 1) asked Person A to prepare a file of evidence documenting the concerns so a fact finding could be conducted with conclusions and recommendations. Person A reviewed the medical records from care Complainant had provided and asked primary care physician Doctor 1 to perform an independent review of the cases of concern. In an August 23, 2016 letter, Complainant was notified that she was being removed from patient care while a comprehensive review was being conducted regarding her clinical practice. The letter identified five areas of concern: Patient Care Issues, Lack of Professionalism, Patient care and System Based Practice Issues, Patient Care and Medical/Clinical Knowledge Issues, and Refusal to address veteran’s complaints of pain. On August 29, 2016, Person A met with Complainant and Person C to provide Complainant a letter notifying her she was being removed from patient care effective that day and detailed for 60 days while a review was conducted into her clinical practice. Complainant was detailed from Primary Care Service to Health Administration Service as a Medical Support Assistant pending the outcome of a fact-finding investigation. Complainant was out on requested leave from August 30 - September 30, 2016. When Complainant returned from leave, she accessed the Agency’s electronic patient record systems (Computerized Patient Record System (CPRS) and VISTA) and sent emails to other providers, including the Acting Chief of Primary Care, the Chief Nurse of Primary Care, and the supervisor of the Chief Nurse of Primary Care, commenting on the care rendered to Veteran patients who had been under her care. Thereafter, the Agency removed Complainant’s access to CPRS and VISTA to make changes or do anything in patient records. On November 23, 2016, Person A submitted a request to convene a Professional Standards Board to evaluate the professional conduct, competency, and the ability of Complainant as a provider in the Primary Care Service. HRS 1 was initially tasked with addressing the concerns with Complainant’s practice. After he left the Hampton VAMC, HRS 2 took over the case. Person A left the Hampton VAMC on January 6, 2017. On June 20, 2017, Doctor 2 emailed HRS 2 to request that Human Resources halt the investigation of Complainant so she could work in Occupational Health performing pre-employee physicals which would help the facility in addressing the number of new employees trying to get into the system. Doctor 3 then advised Complainant in a July 18, 2017 email, that he would be requesting reinstatement of Complainant’s privileges at the next Medical Executive Board so that she could see patients and could review the consults that were inundating the Agency. 2020002256 3 On January 5, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of race (Asian) and national origin (Filipino) when: 1. From May 16 to June 11, 2016, Complainant was prohibited from participation on the late access and vesting clinic to work overtime. 2. In May, 2016, Person A, the Acting Chief, Primary Care Service, made a derogatory remark against Nurse Practitioners with Doctoral degrees regarding the use of the title “Doctor”. 3. On August 20, 2016, Complainant was detailed from Primary Care Service to Health Administration Service as a Medical Support Assistant pending the outcome of a fact- finding investigation.2 4. On October 4, 2016, upon returning from a leave of absence, Complainant was denied access to her clinic. 5. On October 14, 2016, Complainant’s access to the Computerized Patient Record System (CPRS) and Vista was removed.3 At the conclusion of the investigation on the accepted claims, 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). Complainant timely requested a hearing. The record reveals Complainant withdrew claims 1 and 2 while the case was pending before the AJ. The AJ issued two orders for a supplemental briefing from the Agency. The Agency responded and Complainant filed replies to the Agency’s responses. The Agency submitted a motion for a decision with a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on December 13, 2019. The Agency subsequently issued a final order on December 18, 2019. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant claims that Registered Nurse 1 (RN1), who was outside her protected classes, was treated differently under similar circumstances. 2 Although August 20, 2016 is the date listed in the accepted issues, the record reveals Complainant was actually detailed on August 29, 2016. Claim 3 was also accepted as a timely raised discrete action. 3 Initially, Complainant’s complaint included an additional claim that Person A disclosed matters pertaining to Complainant’s EEO complaint in the presence of two employees. The Agency dismissed that claim for failure to state a claim. Complainant does not challenge the Agency’s dismissal of this claim on appeal; thus, we do not address it in this decision. 2020002256 4 Complainant states that she reported RN1 was working outside her scope of practice endangering patients; however, those complaints went unaddressed by management. In contrast, Complainant states that RN1’s complaints against Complainant resulted in her detail/reassignment out of her job. Complainant stated the Agency failed to address whether there was an actual investigation into Complainant’s alleged deficiencies and failed to address the facts showing disparate treatment of her as compared to RN1. Complainant states the Agency attempted to portray the case as its normal administrative process that followed reports of patient care issues. However, Complainant states the process was not normal as she was supposed to be detailed for 60 days, and the detail extended for over three years. Complainant argues that by failing to investigate the actual allegations, the Agency deprived her of any opportunity to respond the allegations. Complainant argues the Agency’s actions in removing her from her position and accusing her of poor performance without justification and without providing her any specific information to challenge the action is a “severe” action. Regarding her disparate treatment claim, Complainant states she was the only Filipino Nurse Practitioner working in Primary Care at the Hampton VAMC. She claims she was subjected to an action that had not been done to anyone else at the Hampton VAMC. Complainant states there is no evidence that any other providers were permanently and indefinitely detailed without remedy. Complainant states this calls the Agency’s motive for the detail questionable when management did not complete the action that supposedly was the reason for the detail. Further, Complainant cites the fact that RN1 was treated more favorably. Complainant states when she complained about RN1, her complaints were ignored. Complainant stated it was true that RN1 as a Registered Nurse was supervised through a different chain of command than Complainant as a Nurse Practitioner. However, Complainant states that both were working for the same team and the same managers named were involved in both complaints. Complainant argues the Agency’s claimed reason for its action is pretext. She states the Agency claimed it detailed her to conduct a full investigation of the patient care issues; however, a full investigation was never done. Complainant noted that after Person A departed, her privileges were restored and she returned to patient care (although not in her position of record). Complainant claims the process for addressing allegations of substandard care were not followed. Complainant argues the complaints against her had no merit due to the fact that Doctor 2 and Doctor 3 decided to place her back into patient care. The Agency submitted an untimely brief in opposition to Complainant’s appeal and it will not be considered. 2020002256 5 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. 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). At the outset, we find the AJ properly determined the record in the present case was fully developed. We note Complainant does not dispute the claims as defined in the Agency’s final order. Regarding her claim of a hostile work environment, Complainant identified three separate but related incidents over a two-month period. We find that Complainant has failed to present evidence to support her claim that she was subjected to harassment based on her race or national origin. To the extent Complainant is claiming she was harassed regarding claims 3, 4, and 5 because she refused to prescribe the narcotics order of Person A, we find this is not evidence of harassment based on her race or national origin. Regarding incident 3, the Agency explained it detailed Complainant out of Patient Care pending the outcome of a fact-finding investigation initiated as a result of complaints it received about Complainant’s clinical practice from her patients and peers involving approximately 40 patients. Regarding claim 4, the Agency noted that as the investigation had not yet been completed when Complainant returned to work on October 4, 2016, she was not allowed to return to work Patient Care on that date. Regarding claim 5, the Agency was concerned with Complainant accessing the relevant computer systems to make changes to patient records and thus, it pulled Complainant’s access to patient records. The Agency noted that after her return on October 4, 2016, Complainant accessed patient records and sent emails to other providers directing them on how to care for her former patients. Complainant does not dispute that she accessed and emailed providers regarding care for her former patients. Complainant claimed the Agency’s actions were based on her race and national origin because another person outside of her protected status was treated differently. Specifically, she stated Comparative 1 (Nurse Practitioner) was accused of substandard care and had patient complaints but was not taken out of the clinic or investigated. Person A explained that there was no investigation into Comparative 1; nor was she rotated out of patient care because the complaints lodged against Comparative 1 were resolved in a timely manner. 2020002256 6 In contrast, Person A explained Complainant had five categories of complaints regarding care of veterans reported from five different areas within the Hampton VAMC. Additionally, Person A noted that there was one other provider who was a White, male (Comparative 2) who had complaints in all five categories. Person A stated she also detailed Comparative 2 out of Patient Care while an investigation was conducted. Claim 3 was also accepted as a claim of disparate treatment. As noted above, Complainant failed to show that Comparative 1 was treated differently than her under similar circumstances. Moreover, the record revealed that Comparative 2, outside of Complainant’s protected classes, had received complaints regarding care of veterans in the same five categories as Complainant and was also removed from Patient Care pending an investigation into the complaints. Next, we address RN1, who Complainant claimed was treated differently. First, we note that RN1 was a Registered Nurse and not a Nurse Practitioner, who, as admitted by Complainant, was subject to a different chain of command. Even if we assume that RN1 was a proper comparative employee, we find no discrimination. Complainant alleges that she raised concerns about RN1 working outside her scope of practice; however, those complaints went unaddressed by management. In contrast, Complainant states that RN1’s complaints against her resulted in her detail/reassignment out of her job. Complainant states the Agency failed to address her claim that she was subjected to disparate treatment as compared to RN1. The record reveals that during the relevant time there was disagreement between Complainant and RN1 regarding the scope of duties in Patient Care. Complainant notes on May 24, 2016, she received an email from Person C which was also addressed to Person A, Person B, and RN1, “To discuss expectations of how the team should function.” Complainant states she asked RN1 who requested the meeting and RN1 told her it was Person B, the Nurse Manager. Complainant states that RN1’s “demeaner led me to believe that [RN1] has reported me to her nurse manager [Person B], [Person C], and [Person A], and precipitated the request for a meeting.” Complainant stated she discovered on March 29, 2016, that RN1 had taken actions that were beyond the scope of practice and had taken actions which caused delay and affected patient care. Complainant stated she emailed Person C to ask for more time to gather evidence regarding her concerns with RN1’s nursing practices. Complainant stated the meeting occurred on June 2, 2016, and she brought proof of RN1’s practices which she described as “substandard care.” Complainant stated at the meeting she showed a medical certificate written by RN1 which she claimed only a licensed medical provider could write. Complainant stated in response, Person B defended RN1 and stated, “Nurses used to do it.” Complainant denied that was the case and noted another person at the meeting said that was not the reason for the meeting. Person C acknowledged that at the meeting Complainant raised concerns about RN1, but he stated that Complainant did not give specifics. Person B noted the June 2 meeting was the first time Complainant gave an indication that she had written documentation regarding RN1’s practices. 2020002256 7 However, Person B stated that Complainant did not give them the physical documentation. Person B noted Complainant was asked to provide the documentation so an investigation could be done. Person C stated that he did investigate and there were some concerns and that after the investigation, “other things happened” and RN1 resigned, but it was not related to the concerns raised. In her rebuttal affidavit, Complainant stated that at the June 2 meeting, before she could give the other evidence Person B and Person C stated that was not the reason for the meeting. Complainant said that she later gave the documentation of RN1’s practice and substandard care to Person D the first week of October 2016. Person D, the Chief Nurse, Primary Care and Outpatient Services, noted that at the June 2 meeting Complainant verbalized concerns about RN1 and claimed she had documentation to support her concerns. However, Complainant did not share the documentation with Person C or Person A. Person D noted that she subsequently met with Complainant regarding her concerns and that at that time Complainant was asked for documentation and then Complainant provided some, consisting mostly of Complainant’s own notes. Person D stated a chart audit was conducted and RN1 had on some occasions ordered things beyond her protocol. In a November 1, 2019 declaration from an Employee Labor Relations Specialist, provided in response to the AJ’s Second Order for Supplemental briefing, it was noted that Person D confirmed a peer review was conducted on RN1, that RN1 was to be trained as a result of the peer review but that RN1 resigned prior to the commencement of that training.4 The record contains no evidence that RN1 was investigated or detailed as a result of Complainant’s complaints. However, we find Complainant’s allegations surrounding the Agency’s handling of the concerns she raised regarding RN1’s patient care are insufficient to raise to an inference of prohibited discrimination. The record reveals that when Complainant raised her concerns about RN1 at the June 2, 2016 meeting, she did not present much detail at the time. As Complainant acknowledged, when she eventually went outside the department in October 2016 to report her concerns in detail regarding RN1, the Agency looked into the conduct identified and as a result RN1 was to receive training; however, RN1 subsequently resigned prior to the commencement of training. While the Agency did not investigate or detail RN1 in the same manner as was undertaken with Complainant, the record reveals that in addition to the complaints from RN1, Complainant had received a number of complaints and/or requests for reassignments from patients and had received multiple complaints from other providers. Finally, we note Complainant claims the Agency’s actions were a pretext for discrimination because the investigation into her patient care took longer than the 60 days initially stated. Moreover, Complainant cites the fact that after Person A departed, her privileges were restored and that she was returned to patient care (although not in her position of record). However, we find neither the length of the investigation nor the fact that actions were taken to return Complainant to patient care prior to the conclusion of the investigation are persuasive evidence to indicate that the Agency’s initial actions in starting the investigation were based on discriminatory animus. 4 The record reveals RN1 resigned effective April 24, 2017. 2020002256 8 CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 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). 2020002256 9 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 April 14, 2021 Date Copy with citationCopy as parenthetical citation