[Redacted], Jona R., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2021001447 (E.E.O.C. May. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jona R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001447 Hearing No. 430-2020-00087X Agency No. 2004-0659-2019102665 DECISION On December 29, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 25, 2020 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND On May 15, 2018, Complainant was hired as a Registered Nurse 2-Psychiatric at the Agency’s VA Medical Center in Salisbury, North Carolina, subject to a two-year probationary period. On May 28, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her on the basis of age (over 40) when: 1. In March 2019, Complainant was humiliated by her peers and colleagues when the following comments were addressed to her: a. “You are too slow;” b. “Why don’t you retire and go on to the house;” 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. 2021001447 2 c. “You are too old to be here;” d. “Who is the old lady with the cane?” e. “She can take her old ass home and that’s just what’s going to happen. It’s over for her. I don’t want to talk to her;” f. “If you don’t mind my asking, how old are you exactly” If I was your age, I would be home working in the garden.” 2. From September 19, 2018 through March 10, 2019, Complainant’s peers and colleagues were disrespectful and rude when they addressed her aptitude to perform the job. 3. On February 28, 2019, an unknown co-worker made rude and sexually offensive comment to Complainant. 4. On April 1, 2019, Complainant was terminated from federal employment during her probationary period. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for Summary Judgment. Complainant responded to the Motion. On October 30, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its November 25, 2020 final order, the Agency adopted 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. 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). 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. 2021001447 3 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. Disparate Treatment - Termination A claim of disparate treatment is examined under the three-party 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 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, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The undisputed facts fully support the AJ’s determination that the responsible management official clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant started her employment at the Agency as a Registered Nurse on May 13, 2018, subject to a two-year probationary period. Almost immediately, management began to have issues with Complainant’s professional competency. On June 15, 2018 Complainant received verbal counseling for improper administration of medication. On June 29, 2018, Complainant’s orientation period was extended based on concerns raised by Complainant herself, unit preceptors and the nurse educator. Soon after, concerns were raised about an Omnicell (automated, secure medication dispensing system) discrepancy which she had left unresolved. While Complainant claimed she never received training on how to handle an Omnicell discrepancy, there was evidence she had received the appropriate training just one month before. Next, on August 10, 2018, Complainant received written counseling for failure to follow correct procedure for a missing medication. In January 2019, Complainant documented the incorrect note title and failed to complete nursing care plans on two assigned admissions within the same week despite having previously received extra training on such documentation procedures. The staff had also voiced its concerns to management about Complainant’s lack of knowledge when assuming her duties as a charge nurse in September 2018, which resulted in her having to receive an additional charge nurse orientation. In December 2018, after having undergone the additional training to prepare her for the duties of a charge nurse, she would improperly assign tasks intended for a charge nurse without a patient assignment (admission assessments, crash cart check, printing armbands, patient stickers, helping with Hazardous Item searches, etc.) to her co- workers who did have patient assignments. 2021001447 4 Complainant also had problems with her time and attendance. She was given a written counseling dated August 10, 2018, for 38 hours of unauthorized absences in June and July. In the eight-month period between when Complainant began working for the Agency on May 13, 2018 and January 19, 2019, when her first review was signed, Complainant had accrued 199 hours of absence without leave from her duty station. Finally, Complainant had several documented issues with her personal conduct. She received a written counseling in August 2018 for use of obscene language in a patient care area and, on another occasion, arrived four hours early for her tour and entering overtime for the extra hours after being explicitly advised not to do so by the Nursing Supervisor. As a result of these incidents and her repeatedly demonstrated professional shortcomings, Complainant received unsatisfactory ratings on all three of her job categories (nursing practice, interpersonal relationships, and overall rating). A request for a Professional Standards Board was initiated by Complainant’s supervisor on January 16, 2019, to review her first-year performance deficiencies. That Board hearing took place on February 15, 2019, with Complainant and her union representative present. The Board concluded that Complainant should be terminated from her position. The separation letter was issued on March 14, 2019, with an effective date of April 1, 2019. After careful review of the evidence of record, we concur with the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management for her termination were a pretext designed to mask discrimination. 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 (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). After receipt of the Notice of Termination, Complainant informed Agency management for the first time of several alleged incidents in which she claimed occurred months earlier, involving age-related derogatory comments either made directly to her or that she overheard. Complainant also noted that one of her co-workers made derogatory comments to her and showed her an inappropriate picture of a naked patient on his cell phone. 2021001447 5 The AJ noted while allegations of this nature would normally trigger an investigation or corrective action by the Agency, Complainant admitted that she never reported any of these incidents to Agency management, and that she only raised these incidents in the grievance over her termination. The AJ averred that an Agency is liable for hostile work environment between co-workers when the Agency knew or should have known of the conduct, yet it failed to take immediate action. However, here the Agency was not informed of the alleged harassment by Complainant or otherwise should have known about it until Complainant was terminated during her probationary period. As such, we conclude that even if the alleged harassment rose to the level of a violation of the ADEA, the AJ correctly determined that the Agency cannot be held liable for it. 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. 2021001447 6 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. 2021001447 7 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 May 25, 2021 Date Copy with citationCopy as parenthetical citation