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

Equal Employment Opportunity Commission

Jul 7, 2021

Appeal Nos. 2020000967, 2020000968 (E.E.O.C. Jul. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joni M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal Nos. 2020000967 & 2020000968 Hearing Nos. 420-2017-00055X & 420-2016-00112X Agency Nos. 2003-0586-2015103101 & 2003-0586-2015104513 DECISION On October 22, 2019, Complainant filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 26, 2019, final orders 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Clinical Nurse Practitioner for Ophthalmology, Nurse 3, Step 13, at the Agency’s Medical Center facility in Jackson, Mississippi. On June 2, 2015, Complainant filed an EEO complaint under Agency No. 2003-0586- 2015103101 (Complaint 1) alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2020000967, 2020000968 2 1. From November 14, 2014, Complainant was subjected to a hostile work environment; 2. In March 2015, the complaint was the subject of an administrative investigative board conveyed by the then Chief of Staff (CS: Caucasian, male); 3. On April 14, 2015, Complainant had to make a presentation before the Clinical Executive Board to defend herself against the results of a chart audit that was ordered by CS; 4. On April 14, 2015, Complainant was placed on a Focus Professional Practice Evaluation (FPPE); 5. On May 13, 2015, Complainant was detailed to Primary Care; 6. As of June 2, 2015, Complainant has not received a proficiency functional statement or performance evaluation since she began employment at the facility in September 2013; 7. In August 2015, an Agency physician (P1: sex, race not provided), refused to sign Complainant’s scope of practice; 8. In August 2015, CS, an Acting Nurse Supervisor (ANS: female, African American), and an Administrative Officer (AO: female, African American) informed Complainant she would not be returning to the eye clinic; 9. On September 8, 2015, P1, ANS, and AO denied Complainant's request for a temporary detail to the National Telehealth Training and Resource Center; and 10. On or about September 20, 2015, Complainant became aware that CS attempted to "blackball" her by interfering in the selection process for the temporary position at the National Telehealth Training and Resource Center. On October 28, 2015, Complainant filed a second EEO complaint, under Agency No. 2003- 0586-2015104513 (Complaint 2), alleging that the Agency discriminated against her on the bases of race, sex, age (46 years) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 11. Complainant has been subjected to ongoing harassment; 12. On June 17, 2015, CS contacted Complainant’s physician to inquire about Complainant’s hospitalization; 13. On June 26, 2015, CS informed Complainant that she would not be moved from her position as Clinical Supervisory Nurse Practitioner in Ophthalmology, but later allowed the Chief of Anesthesiology Service (CAS, Caucasian, male, 49 years old) to inform her that she was assigned as the Nurse Practitioner in Urology; 14. On June 29, 2015, CS refused to timely complete Complainant’s Office of Workman's Compensation Program (OWCP) forms; 15. On July 13, 2015, CAS placed Complainant on a Focused Professional Practice Evaluation (FPPE); 16. On July 22, 2015, CAS reassigned Complainant from the Ophthalmology Department to the Urology Department; 2020000967, 2020000968 3 17. On November 9, 2015, CS and CAS temporarily assigned Complainant additional duties to include clearing the Computerized Patient Record Systems (CPRS) alerts; 18. In November 2015, CS and CAS informed Complainant she was being placed on another FPPE; 19. In December 2015, ANS contacted Complainant’s personal physician to request information regarding her care; 20. On January 27, 2016, ANS scheduled more patients in Complainant's clinics compared to her counterparts; 21. On February 4, 2016, CS and CAS informed Complainant she was being placed on yet another FPPE; 22. On March 24, 2016, the Associate Director, Patient Care Services (AD: Caucasian, female, 55 years old), another Physician (P2: race, sex, age, not provided) and CS reduced Complainant’s pay; 23. On May 18, 2016, AO refused Complainant's physician excuse for sick leave; 24. On May 18, 2016, CS and P2 denied Complainant the opportunity to dispute a payroll debt, causing her financial harm. 25. On May 5, 2016 and ongoing, CAS denied the Complainant’s request to work in the Ophthalmology clinic; 26. On August 3, 2016, management placed Complainant on yet another FPPE; 27. On September 8, 2016, and on a continual basis, CS, ANS, and CAS illegally subjected the Complainant to the FPPE process; and 28. On October 6, 2016, CS, ANS, and CAS did not issue the Complainant an annual evaluation; At the conclusion of the investigations, the Agency provided Complainant with copies of the reports 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 in both cases. The complaints were assigned to the same AJ, who did not consolidate them but who, over Complainant's objections, granted the Agency’s March 9, and April 26, 2017, motions for a decision without a hearing with regard to each complaint. The AJ issued a decision without a hearing for Complaint 1 on September 19, 2019 and for Complaint 2 on September 20, 2019. The Agency subsequently issued final orders adopting the AJ’s findings that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeals followed. We are consolidating the appeals in the interest of efficiency. ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued decisions without a hearing on this record for both complaints. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. 2020000967, 2020000968 4 The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaints were suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. We next find that the Agency articulated legitimate non-discriminatory reasons for its actions. With regard to Claim 2, CS averred that he does not have the authority to administer an administrative investigative board (AIB), “only the Director of the Medical Center can do that. 2020000967, 2020000968 5 And so I didn’t do that” to Complainant. CS further averred that, “to my knowledge, no administrative investigative board has ever been done on [Complainant].” With regard to claim 3, CS averred that “the Professional Standards Board is the one -- that's the group that ordered the chart reviews. I'm the President of the Board, but under our by-laws, I am not a voting member. So it was the Professional Standards Board that actually ordered the reviews to occur.” With regard to claim 4, CS averred that: The service presented information clinically that led to concern about this provider, that she should be looked at more closely from a focused review. That was presented to a Professional Standards Board, which is a subcommittee at the medical executive committee or the, or the CEB in our system, and the PSB heard the concern from the service and said, "Okay, yes, we concur." Then the PSB - and I at that time was the president of the PSB - we voted to do the focused review and we selected someone that we felt would be objective, not involved working with the service or with the provider. With regard to claim 5, CS averred that Complainant: [W]as never formally detailed. I did meet with her . . . to discuss it. And the reason is that I'm, as Chief of Staff, responsible for the overall care provided in the facility. And there can be times when I need to move people around in order for us to provide safe coverage. So in this particular case we had had more than one provider in Primary Care leave, and I had already asked and reassigned a nurse practitioner from the nursing service to work in Primary Care. And so [Complainant] was working in surgery service, and so I wanted her to do it for the reason that, one, in fairness I was trying to use nurse practitioners from more than one service, not from a single service. And then, two, she has a PhD involved around education and leadership and the Primary Care Service was in need of leadership. And so the detail, which did not occur, but the discussion we had . . . is that she would serve in a leadership capacity and she would gain some experience, She wouldn't take an entire panel of patients and just be a frontline nurse practitioner, but instead she would have helped in determining the distribution of work every day. Because in a big service with 21 providers if somebody's sick or somebody, you know, is out unexpectedly, you know, you're going to have patients show up that have to be seen. You can't just send [patients] home. And the nurse practitioners and doctors need -- you know, they're busy seeing their patients, so you can't have them decide who's going to see this person versus that person. And so she would have been in a leadership capacity to actually be assigning coverage to make sure patients were seen. She also would have shadowed and seen some patients, maybe walk-in patients, and the reason is that as a nurse practitioner in order to maintain your license as nurse practitioner - and she's being paid as a nurse practitioner - you have to do clinical care. Nurse practitioners even in 2020000967, 2020000968 6 supervisory positions cannot be sole supervisors or administrators. They still have to provide some clinical care or else they won't meet their licensure requirement and the requirements for being in a nurse practitioner position. So that was why I wanted to do the detail. She was adamant that she did not want to do the detail, told me that she felt she wasn't qualified. I found that very difficult to understand because her nurse practitioner is in family medicine, which is primary care. And so her actual certification as a nurse practitioner is as a family, you know, practice certified nurse practitioner. So the fact that she said she didn't have, the qualifications for it worried me because that's the core certification that she had. She also didn't realize that, you know, as Chief of Staff I'm responsible for the care of 45,000 patients. And there have been times when I have had to reassign doctors and nurse practitioners to make sure we could meet the coverage, and so I have the legal authority for details. And then, lastly, she is in a supervisory position, so as a supervisor -- I also have the right to reassign supervisors. A supervisor is not a frontline bargaining unit employee covered by the union agreement. So she was seeing herself not as a supervisor and not as a nurse that can do primary care. I found that very disturbing. But I actually was setting up a detail where she could have used her PhD and she would be have been more of a use of capacity, and she basically was so difficult about it that I elected not to do the detail because ·· Primary Care needed the help and they wanted her. They really felt like they could use her leadership skills. And I ultimately decided that if she was going to have such a poor attitude that I felt like that that would actually just negatively impact Primary Care, so I elected not to follow through with the detail. With regard to claim 6, CS averred that: I came in January of -- the end of January of 2014, so I was -- she had a supervisor who was a nurse practitioner within Surgery, and then she -- and then that person's supervisor was the service chief. Okay. So in our setting it's those two individuals that actually are responsible and should do the appraisal. And so they did not, and I did not know it until she brought it to my attention. And so neither one of those individuals are here, and the nurse practitioner actually has left the [Agency] and then the previous service chief is now at another [facility]. So when it came to my attention earlier this year I asked the new Acting Chief of Surgery to see that it was done. And so I do not know if it has been done yet. I do know that it was not done for '15 and it should have been, and once that came to my attention I told the service chief, the new person, that it needs to be accomplished. 2020000967, 2020000968 7 With regard to claim 7, ANS averred that P1 “was never on [Complainant’s] scope of practice even though she had worked in thoracic clinic for a period of time. ANS further averred that P1 would need to be added to Complainant’s scope of practice in the event Complainant ever needed to make a clinical decision involving a thoracic patient but that P1 “did not .... the Thoracic surgeon did not want to sign her scope of practice because, you know, he said that, you know, she's not going to be working in Thoracic and he didn't feel comfortable doing it.” With regard to claim 8, ANS averred that: Traditionally speaking, people are assigned to areas of need. They’re not necessarily assigned to an area that they may have worked. . . . So you cover whatever the need is, and you, of course, you have a collaborative physician and you get the appropriate training that you need in order to be able to work in those areas. So when she was reassigned to come back to surgical service, we assigned her to where the need was. The need is in -- was in the Urology clinic, and not in eye [sic] clinic. We had already filled that position with a nurse practitioner in December of 2014. So, there was no longer a need for her to be in the eye clinic, but there is a need in the Urology clinic. So, that's where she was assigned and we explained that to her, that we would assign her to the area that we needed her to work in. And, of course, we would give her the time and the support needed in order -- and orientation, if needed, to work in those areas. With regard to claim 9, AO averred that management originally supported Complainant’s request for a detail but subsequently learned that Complainant was not eligible for the position because it was reserved for VISN [sic] employees only. AO averred that: I basically knew that that position was for VISN employees only. So, during the email conversation back and forth from Central Office, and [ANS] asked me a question, she stated, “is this a facility-based or is it VISN-based?” And I stated to her, we are in a facility-based. Then [ANS] came back, she apologized, and she thought [Complainant] was at the VISN level -- this position was only allocated for VISN employees; unfortunately, not for facility-based employees, at the time. So, I communicate that with [ANS] and then she also stated, in the email . . . that she will reach out to [Complainant to inform her of this, that, since she's in a facility-based, that's the reason why she wasn't considered. With regard to claims 10 and 122, CS denied any knowledge of Complainant’s allegation. With regard to claim 13, CAS averred that: We appointed Chief [sic] of Ophthalmology Service and the structure, the previous structure the way it was before, it wasn't there anymore. And I told [Complainant] that her position when she was there was not there anymore and it was just a nurse in ophthalmology and she could go there, of course, but she said 2 Complainant’s harassment claims (including claim 11) are addressed later in this decision. 2020000967, 2020000968 8 “I want my previous position.” I said “I just cannot. It just does not exist anymore, the previous position.” With regard to claim 14, CS averred that: I did not refuse. I do know that there was a mistake. I should not have been put on the form to do it because I was not her supervisor. And so I'm not sure why I was put on the form. Then when I went to fill out the ASSIST part of it, which is the actual electronic program, I was not even in the system, and I don't know why. With regard to claims 15 and 18, CAS averred that: [A]ccording [to] . . . federal regulation, Professional Standards Board, which is for our credentialing, Professional Standards Board and we have also CEB, which is Clinical Executive Board. Board review and determines, we have a standard thing, you know, when new physician comes and starts to practice in our hospital, it is standard, it is national-wide standard for 90 days to put this new practitioner for 90 days on Focus Professional Practice Evaluation. After 90 days, there is an evaluation, a peer evaluation done by the supervisor, and if there's no any kind of concerns involved, provide the service and the clinical competence, PSB will grant the permission that the person, I mean provider will be placed now in continuous Ongoing Professional Practice Evaluation, so OPPE. . . . . I sent her all the supporting documentation and bylaws, whatever was available, and explain her that a Focus Professional Practice Evaluation is not a punitive tool. It is just monitoring, a professional monitoring tool, which every hospital uses, and it has nothing to do with any kind of punishment. And it is a standard, but especially if she is starting, when she was starting in a new section in Urology, it was a standard thing to do this focused review because when we do a focused evaluation, at the same time as a clinical manager, we need to find weaknesses and strong sides of the provider if there are any, and also to improve that if it’s necessary, or if not, if there's not any kind of concerns, it will be again to transform to Ongoing Professional Practice Evaluation or OPPE. With regard to claim 16, CAS averred that Complainant was reassigned from the Ophthalmology Department to the Urology Department because of a “serious need” for additional staff in Urology. CAS averred that he explained his reasoning to Complainant: I said “right now the only thing you have right now on license is general family nurse practitioner. And you had a specific training in wound care, which you allowed to lapse. Do you possess any other specific training and expertise in any other surgical field?” She said “no.” Okay. Well, I said “you have the same expertise in ophthalmology, you have in Urology.” “Yes, yes.” “Well, then, you know what, right now ophthalmology if fully staffed. There's no need there. And in urology we have a serious need. We do need to take care of this problem. 2020000967, 2020000968 9 As a clinical manager, I know where we have a problem and where we have a need for an experienced person and that's where you'll be assigned. With regard to claim 17, CAS averred that, due no fault of Complainant, while she was out of the office, her name had not been removed from a list identifying her as a care provider and so CPRS alerts still kept coming up in her name. Complainant was initially told she had to clear them but refused, and in the end the work was done by two other nurses. With regard to claim 19, ANS averred that she “asked the secretary to contact [Complainant’s] physician’s office to get clarification and specifics concerning a light duty work assignment.” With regard to claim 20, ANS denied the claim and averred that Complainant “was assigned to same number of patients her counterpart sees who is a Nurse II.” With regard to claim 21, CAS averred that this FPPE was not a new FPPE but merely a continuation of the previous one because: [W]e couldn't get [the previous FPPE] accomplished. She's not placed on another FPPE. Actually the FPPE was extended, started all over again because we couldn't accomplish or finish the first one because she had not done any kind of clinical work. And without the clinical work, we could not base her clinical evaluation on anything else. She took her time to do, three months, 90 days, which is considered to do the clinical work, just for clinical orientation only. With regard to claim 22, AD averred that: I believe what she's speaking about is she was previously and erroneously given two additional steps in her pay for being a manager, she is not entitled to that, and when that was discovered, human resources made her aware that her reduction in pay would occur, and those two steps would be taken away. She was not the only one involved in that, there were a number of people. We did a full review of everyone to make sure that the people who were entitled, as nurse managers, to those two additional steps, were receiving them, and those people who weren't entitled were no longer getting them, With regard to claim 23, AO denied refusing to accept Complainant's physician’s note, stating that an unknown person appeared at work and asked AO to sign for and acknowledge receipt of Complainant’s doctor’s note. AO averred that she told the individual to have Complainant bring the doctor’s note herself when she returned to work. With regard to claim 24, CS averred that the debt was created when Complainant: [W]as coded incorrectly when she transferred to the facility on 9/23/2013. The miscoding resulted in her erroneously being given a two-step increase. The coding error was fixed in February 2016. A debt was automatically created when the coding error was addressed. . . . [Complainant] was given the opportunity to dispute the payroll debt. [She] received a letter from DFAS dated April 2, 2016 explaining the debt and her right to appeal. The letter from DFAS indicated the following: "If you question the validity or amount of the debt, you may request a 2020000967, 2020000968 10 hearing (the letter included instructions on "Requesting a Hearing"). If you do not wish to dispute the validity or amount of the debt, you are entitled to request a waiver of your debt (the letter also included instructions on "Requesting a Waiver''). DFAS will promptly refund to you any amounts you have paid or that were deducted for your debt which are later waived or found not owed to the United States." The letter indicates a hearing and a waiver can be requested through the local payroll office. Payroll has not received a request for a hearing or a waiver to date. With regard to claim 25, CAS averred that he spoke with Complainant and: I said “right now the only thing you have right now on license is general family nurse practitioner. And you had a specific training in wound care, which you allowed to lapse. Do you possess any other specific training and expertise in any other surgical field?” She said “no.” Okay. Well, I said “you have the same expertise in ophthalmology, you have in Urology.” “Yes, yes.” “Well, then, you know what? Right now, ophthalmology is fully staffed. There's no need there. And in urology we have a serious need. We do need to take care of this problem. As a clinical manager, I know where we have a problem and where we have a need for an experienced person and that's where you'll be assigned.” With regard to claims 26 and 27, CS and CAS averred that Complainant was placed in the FPPE on this occasion because she had not completed her previous one and thus this was not a new FPPE but a repeat of the prior, never-completed, FPPE. Both denied harassing Complainant or subjecting her to an “illegal” FPPE. Finally, with regard to claim 28, CAS averred that: The annual evaluation has not been completed at this time. The complainant has only recently been transferred into her current position. Her supervisors felt that there was not enough data collected to be able to render an informed decision regarding the evaluation. It was felt that [Complainant] would be better served if she were allowed more time in her position in order to optimize her practice so that her data would reflect greater productivity. As such, currently, the data support only being a low volume provider and if she had more time in order to build up her practice and competence, she would have a much better chance for a good annual evaluation. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. 2020000967, 2020000968 11 With regard to claim 2, Complainant admitted that she was “misquoted” and that she did not go before the administrative investigative board but that the board “met and a motion had been made to revoke my clinical privileges and separate me from federal employment,” without her participation. Complainant did not claim, however, and the record does not show, that her clinical privileges were revoked or that she was separated from service pursuant to any such motion. With regard to claim 3, Complainant admitted that the final outcome of her appearance before the Clinical Executive Board was “no adverse actions, no reportable information to the board of nursing. [CS] called me to his office about 15, 20 minutes after my presentation and told me that he was going to reinstate me as a nurse practitioner.” With regard to claim 4, Complainant said that in an email with CS he explained to her that “he just wanted to reiterate that everyone is placed on an FPPE as a new provider and that's all that this was is just them placing me an FPPE since I would be practicing again as a new provider and that it was not about a question of me providing substandard care.” With regard to claim 5, Complainant averred that when he informed her about the detail, CS told her “you have this very diverse specialized knowledge and we want to utilize it. You have a skillset that will help us to reduce the deficit of 13 million dollars and we want you to come and help us in primary care. You'll be the oversight or -- you'll provide leadership to physicians and nurse practitioners and we also want you to see walk-ins.” Complainant, however felt that the detail was unacceptable because: I don't have primary care experience, number one. Up to the point of the CEB, which was less than a month earlier, I was being labeled as incompetent and he was ready to terminate me and it was going to be a 90-day detail and there's no way I could help to reduce a deficit of 13 million dollars in 90 days, and they're short-staffed and I don't have any experience working with PACT and he knew that. . . . I also raised the concern that because I don't have any of the training hours for primary care -- I believe the training hours for a physician are greater than 700 and to be thrown directly into that was setting me up to fail once again. So, yes, I raised all of these issues with each of the chiefs that were in the room. Also that I needed something in writing to show me exactly what the responsibilities would be, who my supervisors would be that I would be reporting to. With regard to claim 6, Complainant reaffirmed CS’s testimony that the management officials responsible for her evaluations “are no longer employed here.” With regard to claim 7, Complainant averred that P1 would not sign her scope of practice because he believed it was “illegal” for him to do so, but that she did not know why P1 felt that way. Complainant further noted that P1 signed “the scope of practice for a Caucasian nurse practitioner who was just returning from active duty, and he did. So he wouldn’t sign mine but he did hers.” Complainant, however, did not identify this nurse practitioner and hence cannot show she was similarly situated with her. With regard to claim 8, Complainant averred that: 2020000967, 2020000968 12 When I met with [P1] he told me that he was full in the ophthalmology clinic and that if he removed the nurse practitioner from that clinic that the union would cause him problems and so I needed to go and work in the urology clinic. And he told me it would be temporary. So later I sent him an email in relation to that and felt after I had read -- or after I had saw that they were going to place me on an FPPE -- that they're sending me to a position I have no experience in, that that could potentially cause an endangerment to veterans and I expressed my concern. He informed me through these emails that I was hired as a general nurse practitioner and that they could use me anywhere in the service that they needed to and that there was a need for me to be used in the urology department. He said it would be a temporary basis. Later, my preceptor, [______] (name omitted), was asked by [ANS] about developing me a clinic so that I would have my own panel of patients in the urology department. I approached [ANS] about it and asked her if that was going to be my assignment or if I would be returning to the eye clinic to the position for which I was hired. She informed me . . . through email that that would be my assignment in surgical service and that is being in the urology clinic full-time seeing patients. So they took away my supervisory status from the eye clinic position for which I was hired. And [AO] then sent me an email and said, “you are a general nurse practitioner. I'll be submitting an SF-52 to indicate such and we can use you anywhere in the service that we so choose.” With regard to claims 9 and 10, Complainant averred that she “felt” that CS was responsible for the detail being denied, and that he “possibly placed a call” to those making the selection, but provided no evidence to support such a claim. Nor did Complainant address the Agency’s articulated reason for its action. With regard to claims 12 through 21, Complainant averred that the reason she felt her treatment was based on discrimination was because: I think it has a lot to do with me being an African-American female over the age of 46 -- I'm sorry, over the age of 40. I'm outspoken. I'm not willing to just take no without asking more questions. And so a lot of times with age there comes that wisdom of asking before doing. They can't just push me around anymore. I have to ask why things are taking place as they are. Because of my age, because of my race, because of my intelligence and my wisdom, that those things are somewhat threatening. Again, however, Complainant has provided no evidence to support her belief that her treatment was due to discrimination. With regard to claim 22, Complainant averred that “when I was hired as a supervisor, I was told by the HR representative at that particular time that because I'm a supervisor, I would get a two step increase, so that would make me a III/13.” With regard to claim 23, Complainant’s version of events essentially matches AO’s. We note in this regard that Complainant does not claim that she was denied leave on this occasion. With regard to claim 24, Complainant averred that she was told that she could have a hearing to dispute the pay issue and that “On 4/7/2016, I sent [P2] electronic copies of the debt letter. Since then, I've been waiting for a hearing that did not take place.” 2020000967, 2020000968 13 As with claims 26 through 28, Complainant again maintained that race, sex, age and reprisal were factors because she had not seen others outside of her protected bases “treated the way I am being treated.” Absent additional evidence, however, Complainant’s belief is insufficient to establish discrimination by a preponderance of the evidence. Indeed, Complainant’s testimony concerning all of the claims either fails to address the Agency’s articulated reasons for its action, or merely expressed disagreement with those reasons without establishing, by a preponderance of the evidence, that such reasons are pretextual. Nor has Complainant shown that Agency officials harbored discriminatory animus towards her protected bases. Furthermore, we do not find that Complainant has shown the presence of a material issue of fact. On appeal, Complainant maintains that “every fact relied upon by the Agency in its motion is disputed.” We note, however, that Complainant on appeal has not identified any such facts in dispute, nor the precise nature of such claimed disputes. Indeed, in her May 12, 2017 opposition to the Agency’s motion, Complainant filed a cross motion for summary judgment in her favor, arguing that there were no material facts at issue. Complainant further argues that she was not provided notice of the Agency’s summary judgment motion. As noted above, however, the record shows that following the Agency’s March 9, 2017 Motion for Summary Judgment, Complainant filed a Supplemental Response in Opposition to the Agency’s Motion for Summary Judgment and cross Motion for Summary Judgment in her favor, on May 12, 2017, well before the AJ’s September 2017 decision. As such the record shows that Complainant was clearly aware of the Agency’s Motion, had the opportunity to respond, and did so. We are therefore unpersuaded by Complainant’s argument. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when the incidents listed 2 through 10 and 12 through 28, above, occurred, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any such claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment occurred: from November 14, 2014 through February 19, 2015, CS did not inform Complainant that chart audits are done per the peer review quality management policy; On February 19, 2015, Complainant was not provided due process to dispute false charges and a motion to revoke her clinical privileges and separate her from federal employment before the Professional Standards Board (PSB); On August 4, 2015, CS, ANS, and AO instructed Complainant to perform false medical record notations for patients for which she had never provided treatment; in August 2015, Complainant was “targeted 2020000967, 2020000968 14 and alienated” by CS and P1; On July 22, 2015, CAS threatened Complainant with a demotion to a nonsupervisory position; On November 4, 2015, ANS informed Complainant that she would not be returning to her previous position because it had been eliminated and the vacant slot was replaced by another position and filled by another nurse practitioner; Since November 7, 2014, CS has not provided Complainant with any SF-52 or memorandums concerning her duty assignments; On March 23, 2016, ANS, a Supervisory Nurse Practitioner, and CAS, all assigned Complainant work duties; On March 24, 2016, the Associate Director of Patient Care Services (ADPCS: Caucasian, female, 55) failed to permit Complainant to complete an application to a national workgroup; On May 4, 2016, ADPCS denied Complainant’s request to participate in a pressure ulcer education subcommittee meeting; On May 6, 2016, CS, CAS and a Staff Physician, (P3) attempted to make Complainant falsify and fraudulently complete patient encounters; On or about June 2, 2016, ANS requested that another nurse practitioner work in the Ophthalmology clinic, instead of the Complainant; On or about June 2, 2016, CAS and ANS alienated Complainant from being part of an Ophthalmology workgroup; On June 24, 2016, CS, P3, ANS, and the Supervisory Nurse Practitioner (SNP) failed to take corrective action related to patient scheduling practices; On June 24, 2016, P3, CAS, and ANS denied Complainant from participating in the peer review process; On June 24, 2016, P3, CAS, and ANS failed to provide Complainant with full access to the consult package in surgical service; On September 8, 2016, CS, ANS, and CAS bullied Complainant through intimidating, slanderous, malicious and derogatory actions by attacking her interpersonal and communication skills; and on September 8, 2016, CS, ANS, and CAS failed to allow Complainant to have representation. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). 2020000967, 2020000968 15 However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). While the actions were undoubtedly unpleasant for Complainant, following a review of the record we find that she has not shown that the actions alleged either involved or were based on her protected bases. Nor has she shown the such actions were sufficiently severe and/or pervasive so as to alter the terms and conditions of her employment. We therefore find that Complainant has not shown that she was subjected to a hostile work environment based on her protected bases. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown, by a preponderance of the evidence that discrimination occurred. Nor has Complainant shown the presence of a material issue of fact. We therefore AFFIRM the Agency’s final orders. 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). 2020000967, 2020000968 16 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. 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. 2020000967, 2020000968 17 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 July 7, 2021 Date