[Redacted], Joette R, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 5, 2021

Appeal No. 2020002916 (E.E.O.C. Apr. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joette R,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020002916 Hearing Nos. 430-2018-00243X 430-2019-00007X Agency Nos. 2004-0659-2017102792 2004-0659-2018102683 DECISION On February 28, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 30, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (Nurse II, Step 8), VN-0610, at the VA Medical Center in Salisbury, North Carolina. On June 29, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (physical) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973. Following several amendments to the complaint, the Agency accepted the following claims for investigation (Agency No. 2004-0659-2017102792): 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. 2020002916 2 1. On April 6, 2017, the Nurse Manager sent Complainant a high-priority email to remind her about providing her cell and home telephone numbers to veterans or family members after she had been previously informed; 2. On April 7, 2017, Complainant learned she had not received compensatory time when she participated in mediation on March 7, 2017; 3. On April 7, 2017, the Nurse Manager failed to respond to a follow-up email for Complainant to participate in a Lean Yellow Belt project; 4. On April 14, 2017, the Nurse Manager accused Complainant of abandoning her patients by taking leave under the Family and Medical Leave Act (FMLA); 5. On April 18, 2017, the Assistant Nurse Manager accused Complainant of failing to do a skin assessment on a veteran; 6. On April 20, 2017, the Employee/Labor Relations Specialist informed Complainant she was authorized to request administrative leave to prepare for her case, but official duty time would be better spent caring for veterans; 7. On May 4, 2017, Complainant learned her work schedule was changed and she was removed from all charge nurse duties and responsibilities; 8. On May 5, 2017, the Nursing Supervisor gathered Complainant and other employees for a meeting without prior notice to Complainant, which exacerbated her medical condition and forced her to take leave; 9. On May 5, 2017, the Licensed Practical Nurse yelled at Complainant and charged at her, as if to physically attack her; 10. On May 11, 2017, the Nurse Manager instructed Complainant to go home after she had worked for two hours after being told she could work her scheduled shift; 11. On May 11, 2017 and April 14, 2017, Complainant’s reasonable accommodation to be notified one hour in advance for a meeting and a chance to obtain union representation was violated when the Nurse Manager contacted Complainant to report to her office for a meeting; 12. On May 12, 2017, Complainant was detailed to the Health Administration Service; 13. On May 12, 2017, during a meeting, the Nurse Manger told Complainant she “better not take FMLA leave,” and told Complainant to go home following her request for FMLA leave; 14. On May 22, 2017, Complainant learned a complaint was filed against her with the North Carolina Board of Nursing for allegedly exceeding her scope of practice; 15. On June 16, 2017, Complainant’s colleague allegedly spoke to Complainant in an unprofessional manner telling her no one wanted her in the office and for her not to say anything to anyone who comes into the office; 16. On July 18, 2017, Complainant learned her access to the Computerized Patient Records System (CPRS) was blocked and her name deleted from the unit email list and schedule; 17. On July 26, 2017, Complainant was denied access to her time and attendance and denied the ability to correct and be paid for her leave without pay (LWOP) hours after having her leave restored; 2020002916 3 18. On August 14, 2017, the Nurse Manager informed Complainant of an inquiry/factfinding to be conducted for a coworker’s allegations against her regarding a hostile work environment; 19. On October 23, 2017, Complainant was not interviewed about an incident which took place when she learned a factfinding investigation was completed regarding allegations of a failure to call a rapid response code pertaining to an incident when a veteran, who had aspirated hours before her shift began, was taken to the Emergency Department by a Certified Nursing Assistant instead of a Registered Nurse; and 20. Complainant’s nursing proficiency (performance evaluation) was not timely completed. Complainant subsequently filed another formal complaint on April 17, 2018 (Agency No. 2004- 0659-2018102683), wherein she alleged discrimination on the bases of disability and reprisal when:2 a. On an unspecified date, Complainant was placed on an inappropriate detail; b. On February 2, 2018, Complainant was left on detail assignment longer than was appropriate; c. On February 21, 2018 and March 6, 2018, Complainant was denied reasonable accommodations; d. On February 21, 2018, Complainant was denied eight hours of leave; e. On February 23, 2018, Complainant received an “Unsatisfactory” rating on all elements; f. On March 6, 2018, Complainant allegedly received inappropriate nonverbal gestures when she received her Proposed Removal notice; g. On March 14, 2018, Complainant was denied an opportunity to file a workers’ compensation claim; and h. On April 20, 2018, Complainant was removed from federal service. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On October 29, 2018,3 Complainant filed an unopposed motion to consolidate the above matters. The assigned AJ granted Complainant’s motion on May 21, 2019. The Agency then submitted a motion for a decision without a hearing, which Complainant opposed. The AJ ultimately issued a decision by summary judgment in favor of the Agency.4 2 For ease of reference, we refer to the claims in the same manner as the Agency and Administrative Judge. 3 On November 21, 2018, Complainant submitted an amended motion to consolidate. 4 On October 15, 2019, Complainant voluntarily withdrew claims 5 and 7 and claim g. See Notice of Complainant’s Voluntary Dismissal, dated October 15, 2019. 2020002916 4 On January 30, 2020, the Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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). In order 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 has 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. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2020002916 5 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. 2020002916 6 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 5, 2021 Date