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

Equal Employment Opportunity Commission

Dec 8, 2021

Appeal No. 2020004419 (E.E.O.C. Dec. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Geraldine G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004419 Hearing Nos. 470-2017-00143X; 470-2018-00036X Agency Nos. 200H-0539-2016100940; 200H-0538-2016104730 DECISION On July 31, 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 12, 2020 final order concerning her equal employment opportunity (EEO) complaints 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Registered Nurse, Nurse I, at the Agency’s Cincinnati VA Medical Center in Cincinnati, Ohio. On January 26, 2016, Complainant filed an EEO complaint (Agency No. 200H-0539- 2016100940) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), national origin (Tanzanian), color (Brown), age (50), and in reprisal for prior protected EEO activity when: 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. 2020004419 2 1. From December 2014 to March 2015, Complainant’s previous Nurse Manager accused Complainant of changing the work schedule and denied Complainant the ability to self-schedule; 2. On January 4, 2015, Complainant’s former Nurse Manager wrote Complainant a harsh email in response to an incident with a patient’s light on ward 5N; 3. On April 2015, Complainant became aware she was not selected for a nursing position on Ward 6N; 4. On March 30, 2015, Complainant was reported for a failure to use sterile procedures, which was staged by other staff that was never disciplined after the report was proven to be unfounded; 5. On January 28, 2015, Complainant’s input to her performance proficiency was not acknowledged; 6. On June 21, 2015, the Chief Nurse, Surgical Services, issued Complainant a written counseling despite the fact that human resources did not support the action; 7. On August 5, 2015, Complainant met with several managers to discuss her concerns with communications, some of which were not addressed, and the Chief Nurse asked Complainant if she was still on probation; 8. On October 9, 2015, nursing management forged an alleged letter from a patient’s spouse, and when it was deemed as unfounded, the summary review board proceeded to allow it into Complainant’s evidence file; 9. On October 27, 2015, during a meeting with management to respond to allegations, the Nurse Manager stated, “Okay, yeah! We got you now,” and management failed to respond to Complainant’s written responses to the allegation; 10. On October 30, 2015, the Chief Nurse instructed the nurse of the day not to allow Complainant to float to any other floor due to administrative restrictions; 11. On November 2, 2015, the Nurse Manager confronted Complainant in front of other staff and instructed her about giving her response to a matter that Complainant felt was debasing and unprofessional; 12. On November 25, 2015, the Chief Nurse informed Complainant in the presence of the VA police that she was informed that Complainant wore a recording device, and when Complainant asked for details, the Chief Nurse was unable to respond; 13. On December 1, 2015, Complainant was informed to report to another floor, without an explanation; 14. On December 18, 2015, Complainant was reassigned to another unit pending a Summary Probationary Review and Convening of the Professional Standards Board to review her probationary period employment status; 15. On December 27, 2015, Complainant was accosted by a male coworker in league with nursing administration, who put his finger in her face, raised his voice and stated she was already fired; and after Complainant reported it to management and to the VA Police, nothing was done; 16. On January 4, 2016, during the summary review board meeting, the board only included the Agency’s evidence, only one of Complainant’s documents, appeared biased, and the chairman shouted to Complainant, “Just answer the questions!” 2020004419 3 17. On January 29, 2016, two coworkers approached Complainant told her that something was coming, and that management was preparing a private investigation on her and removing her from patient care; 18. On January 30, 2016, Complainant wrote to the VISN 10 Director regarding the January 29, 2016 incident, but she received no response; and 19. On February 2, 2016, after Complainant was told to report to “court,” she reported to the Chief Nurse’s office instead and was issued notice of detail to the Education Department and was informed that this was an indefinite assignment. On September 13, 2016, Complainant filed a second complaint (200H-0538-2016104730) alleging that the Agency subjected her to discrimination and a hostile work environment in reprisal for prior protected EEO activity when: 1. On July 29, 2016, the Chief Nurse Surgical Care issued Complainant a notice of fact finding for patient care concerns; 2. On August 2, 2016, Complainant was issued a notice that on August 16, 2016, a Summary Probationary Review and Convening of Professional Standards Board was being held to review her probationary period employment and to recommend her retention or separation from federal employment; 3. On August 18, 2016, the Professional Standards Board recommended that Complainant be removed from federal employment; and 4. On August 19, 2016, the Interim Director approved the Professional Standards Board’s recommendation and effective August 22, 2016, Complainant was separated from federal service during her probationary period. The pertinent record shows that Complainant was hired in August 2014 with a two-year probationary period. The record shows that Complainant and management had a contentious relationship. There had been a recommendation to terminate her in 2015, but the previous Director overturned the decision. Her employment continued, but she was required to undergo a reorientation. During the reorientation process, new concerns were raised by Complainant’s peers about Complainant’s nursing practices. A new fact-finding investigation was initiated in July 2016. Complainant appeared before the Professional Standards Review Board a second time on August 16, 2016. The Board determined that Complainant failed to follow appropriate procedures and instructions during a Basic Knowledge Assessment Test and failed to properly manage a veteran’s pain on two separate occasions. She also failed to use the sterile dressing technique for another patient. Following a summary review of Complainant’s employment during her probationary period, the Board recommended that Complainant be terminated. Complainant testified she was never counseled, never received an unsatisfactory evaluation, or told of a need for improvement. Complainant claimed that the Board only considered the Agency’s evidence and considered an unfounded letter of complaint from the spouse of a veteran. Complainant was terminated, two days before the end of her probationary period. 2020004419 4 At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings and the complaints were subsequently consolidated. The AJ initially assigned to the matter (AJ1) held a hearing on February 7, 8 and 9, 2018 and on May 7, 2019. The Agency then moved that AJ1 recuse himself for bias and the matter was transferred to a second AJ (AJ2). AJ2 held a hearing on June 11 to June 13, 2019. AJ2 issued a bench decision finding that Complainant failed to demonstrate that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting AJ2’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the three “occurrences/patient care events” referenced in the July 26, 2016 fact finding did not occur. She maintains the AJ decision ignored evidence in both of the records which established her claims that she was subjected to a hostile work environment and the purported reasons and justifications offered for the Agency’s actions are merely a pretext for unlawful retaliation and national origin discrimination. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of AJ2’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports AJ2’s determination that Complainant has not proven discrimination, reprisal, or a hostile work environment by the Agency as alleged. We discern no basis to overturn AJ2’s decision. Accordingly, we AFFIRM the Agency’s final order adopting AJ2’s decision. 2020004419 5 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). 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. 2020004419 6 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 December 8, 2021 Date