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

Equal Employment Opportunity Commission

Jun 15, 2021

Appeal No. 2020000774 (E.E.O.C. Jun. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janiece H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000774 Hearing No. 420-2015-00118X Agency No. 2003-0586-2014104563 DECISION On October 22, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 26, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Clinical Supervisory Nurse Practitioner in Surgical Service at the Agency’s Jackson, Mississippi VA Medical Center (VAMC). On September 30, 2014, Complainant filed the instant formal complaint alleging that the Agency subjected her to discriminatory harassment based on race (African-American), sex (female), and in reprisal for protected EEO activity (current complaint) when: 1. on May 27, 2014, Complainant’s supervisor denied her annual leave; 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. 2020000774 2 2. on or about May 29, 2014, the supervisor accused Complainant of making errors in the eye clinic, and held Complainant accountable for issues that were out of her control; 3. in May 2014, the supervisor assigned Complainant additional tasks when she was overloaded with other duties and assignments; 4. on June 16, 2014, the supervisor requested Complainant enter her leave when she was thirty minutes late; 5. on June 20, 2014, Complainant was denied the opportunity to attend training which would enhance her career as a Supervisor, Nurse Practitioner for Ophthalmology; 6. on June 23, 2014, the supervisor assigned Complainant additional duties to cover for another nurse; 7. on June 25, 2014, Complainant was denied training in a national program for which she was previously selected; 8. in June, July, and August 2014, Complainant was assigned the thoracic clinic and the wound clinic, in addition to the other duties for which she was hired; 9. on July 8, 2014, the supervisor told Complainant “You are not happy unless you are being praised or delegating.” The supervisor also denied Complainant assistance in completing her assignments when she was assigned to carry two pagers and work for three clinics; 10. on July 8, 2014, the Chief, Surgical Service (“Chief”) failed to take action when Complainant informed him that she was being harassed, and receiving negative feedback from the supervisor; 11. on July 10, 2014, the supervisor demanded Complainant find coverage in order for her emergency leave request to be approved; 12. on July 11, 2014, the supervisor prohibited Complainant from working “collaboratively” with staff in the eye clinic; 13. on July 28, 2014, the supervisor denied Complainant assistance when she stated she was overloaded with work assignments; 14. on August 6, 2014, the supervisor “harassed” Complainant when she was giving the needs of patients a higher priority than attending staff meetings; 2020000774 3 15. on August 19, 2014, the Chief informed Complainant that the supervisor had recommended she be terminated; 16. on August 19, 2014, the Chief informed Complainant she had two choices, either resign or face termination and being “drug through the mud” and that her VA career was over; 17. on or about September 12, 2014, the supervisor asked Complainant’s co-worker to write a negative statement on an incident involving Complainant which occurred six months earlier; 18. as of September 18, 2014, Complainant has not received any performance feedback/evaluation for the past year including both her midterm and annual performance appraisals; 19. on September 25, 2014, Complainant was denied annual leave; 20. on November 14, 2014, Complainant was suspended from patient care pending the outcome of a board of investigation; 21. as of this date, December 23, 2014, Complainant has not received her annual proficiency evaluation or appraisal for 2014; and 22. on December 11, 2014, Complainant became aware that the Chief placed negative documents in her provider profile which may be used for disciplinary action against her. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for Summary Judgment Without a Hearing. Complainant responded to the motion. On September 12, 2019, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. 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. 2020000774 4 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 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. To prove her harassment/hostile work environment 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, religion, disability, age, and in reprisal for prior EEO activity. Only if Complainant establishes both of these elements - hostility and motive - will the question of Agency liability present itself. 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). Since September 23, 2013, Complainant has worked as a Clinical Supervisory Nurse Practitioner in Surgical Service at the Jackson, Mississippi VA Medical Center. The Chief of Surgery and the Nurse Practitioner participated in the interview and selection of Complainant. After selecting Complainant, the Chief agreed to be Complainant’s collaborating physician as required under the laws of the State of Mississippi. At least two types of reviews exist for Nurse Practitioners. The State requires certain reviews for licensing purposes with the Board of Nursing. The Agency also has an Ongoing Professional Practice Evaluations. The Chief, as her collaborating physician, did Complainant’s chart reviews related to the licensing board. In June or July 2014, the Chief had an email correspondence with Complainant concerning her evaluation. In his affidavit, the Chief (Caucasian, male) noted that it was not uncommon for Nurse Practitioners to work in multiple specialties. The Chief stated that in December 2013, he received an email from a physician in the SCI (Spinal Cord Injury) expressing concerns relating to Complainant’s refusal to do a face-to-face with veterans after he relayed the information to her over the telephone. In addition, the physician stated that he will continue to provide the best of service to SCI veterans, but he was not prepared to fill the role that Complainant had deemed by duty without adequate education and additional assistance due to delays. The Chief asserted that Complainant was not overloaded with duties and assignments. He further stated that compared to other Nurse Practitioners, Complainant’s assignments were “markedly lower” than the other Nurse Practitioners. 2020000774 5 Regarding the claim that Complainant informed the Chief that she was being harassed and receiving negative feedback from the supervisor, the Chief asserted that he told Complainant that she and the supervisor need to work this out or take a conflict resolution. He further noted that the supervisor offered to do mediation with Complainant but she declined it. Regarding Complainant’s allegation that the Chief informed her that he and the supervisor wanted her to be terminated, the Chief stated at that time there were numerous documented complaints from numerous physicians in which Complainant refused to see patients, and that she was “cutting and pasting.” He noted that an Anesthesiology staff observed Complainant cutting and pasting reflecting that patients did not have histories of colon cancer and heart attacks, although the patients actually had these conditions. In addition, the Chief informed Complainant of significant concern related to her competency in doing comparable work to the other Nurse Practitioners, including her productivity. He noted that the Professional Standards Board could decide that Complainant might need a new “focused elevation” where Complainant can continue to work and have her charts reviewed for six months and see if she is improving. The Chief asserted that he did not tell Complainant that she was going to either have to resign or face termination. Instead, he told Complainant that she can continue to work, or she can opt to find another position outside of Surgical Service. Moreover, the Chief stated that Complainant emailed her that she would continue work in the Surgical Service. The Chief stated that in regard to Complainant’s allegation that on July 11, 2014, the supervisor prohibited Complainant from working “collaboratively” with staff in the eye clinic, he met with the staff in the eye clinic to encourage a collaborative working environment. He also noted that the supervisor encouraged the same. Specifically, the Chief stated that the supervisor had no desire to intervene unless there was a personality issue or a process that was not working well. Complainant claimed further that as of September 18, 2014, she had not received any performance feedback or evaluation. The rating period extends from October 1 through September 30. At some point after September 30, employees typically get their rating. The Chief noted that Complainant’s performance was referred to the Professional Standards Board. The Board decided to initiate a comprehensive review of Complainant’s practice. Because the Agency determined that it would not make sense to have different assessment of the same practice, the Agency postponed issuing ratings in these situation until the outcome of the review. The Supervisor of Nurse Practitioners (Caucasian, female), also Complainant’s supervisor, stated that with respect to Complainant’s claim that she was denied annual leave when the supervisor called about two patients that day. She explained that she received a call from the attending physicians in the eye clinic regarding Complainant’s absence. The supervisor stated that in addition to requesting leave, Complainant should have included her leave on the calendar for patients who were scheduled to see her that day. After being notified that Complainant was not at work that day, the supervisor called Complainant and she told her that she had planned to be out of town, but her plans had changed. 2020000774 6 Complainant also claimed that she was harassed when on May 29, 2014, when the supervisor called her into her office to talk about systemic processes in the eye clinic where she was a supervisor. The supervisor stated that she met with attending physicians. The supervisor stated that one of the issues was Complainant had scheduled a patient for surgery on a day where the physician was not there. As a result, other physicians had to operate a patient whom they had not examined or faced canceling the surgery. The supervisor noted that Complainant was only seeing approximately two wound care patients per month and her patient load was significantly less which is the reason when she had a resignation in the thoracic clinic, Complainant was the person that picked up that patient load because the other Nurse Practitioners were doing “two to three to four to five times her workload.” With respect to Complainant’s allegation that when she arrived to work thirty minutes late and she was harassed by the supervisor, the supervisor stated that Complainant sent her a long explanation of why she was late which was really immaterial but she did not chastise her in any way for being tardy. Moreover, the supervisor asked Complainant to put her time in. The supervisor further noted that Complainant did not contact her to attend residents’ day but her request was forwarded to her. The supervisor informed Complainant she was free to attend residents’ day but she needed to check with two of her co-workers first to make sure patient care coverage was provided and available. Complainant claimed that on November 14, 2014, she was detailed away from patient care pending a review of her clinical practice. Complainant claimed this detail was based upon a decision by the Professional Standards Board (PSB), and the decision was pending a review of Complainant’s documentation, assessment, and treatment of patients. In its Provider Professional Standards Board (PSB) Surgical NP competency review, the PSB noted that multiple medical issues had been left out or cut and pasted in patients charts and there were numerous examples of glaring problems have been noted in CPRS and discussed with Complainant. Complainant was moved from wound care after allowing her certification to lapse. Finally, the PSB discussed recommended to suspend privileges for a management review. Complainant claimed that the above PSB’s decision was “further reprisal that’s been pushed by [supervisor]…I feel it’s discrimination, especially on the basis of my race, by [supervisor].” However, Agency management denied subjecting Complainant to harassment. The Agency took reasonable steps to ensure Complainant was treated fairly, and that the care provided to Veteran patients was up to par. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her claims that her treatment was the result of her race, sex and prior protected activity. 2020000774 7 Here, the preponderance of the evidence does not establish that the supervisors involved were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, 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. 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). 2020000774 8 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. 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 15, 2021 Date