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

Equal Employment Opportunity Commission

Jul 13, 2021

Appeal No. 2020002810 (E.E.O.C. Jul. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lula N.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002810 Agency No. 200P-0663-2018104021 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 18, 2020 final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Anesthesiologist within the Anesthesiology Service at the Agency’s VA Puget Sound Health Care System in Seattle, Washington. In this position, Complainant served as the Attending Anesthesiologist and Medical Director of the Pre-Anesthesia Clinic and the Same Day Unit (SDU).2 Simultaneously, Complainant also worked as an Associate Professor of Anesthesiology for the University of Washington’s Medical School (UW) which collaborated with the VA’s Anesthesiology Department. 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. 2 The record indicates that Complainant’s position was nonsupervisory. 2020002810 2 On July 31, 2018, Complainant filed a formal EEO complaint, which was subsequently amended, claiming that the Agency subjected her to a hostile work environment based on sex (female), age (56), and in reprisal for prior protected EEO3 when: 1. from February to June 2016, Complainant was required by management to work with the former-Acute Pain Services Director, who refused to speak to her and consistently glared at Complainant in a threatening manner; 2. in September 2016, Complainant did not receive a raise from the VA; 3. in mid-November 2016, Complainant was required to provide a urine sample for drug testing; 4. on or about February 24, 2017, Complainant was subjected to an investigation and fact-finding by a co-worker, and she was not provided a copy of the results; 5. on March 21, 2017, Complainant received an “average” performance evaluation that was not appropriate; 6. since Spring 2017, Complainant’s supervisory work responsibilities were diminished by management, and Complainant was informed that she was not a supervisor; 7. since March 2017, Complainant was subjected to comments like, “When are you going to retire?” and “Why should you still work when you have a husband now?” and “We have a plan for [Complainant]!” or words to that effect; 8. from August 2017 to November 2017, Complainant was required to work with her former Supervising Chief; 9. on or about August 2, 2017, a co-worker told Complainant, “F-k it. [Complainant] suspects [the former Anesthesiology Chief, the current Anesthesiology Chief, and the Deputy Chief] orchestrated this ostracism in retaliation for her complaints;” 10. since August 2017, Complainant has been ostracized by her unit and co-workers; 3 Complainant explained that beginning in February 2016, she reported to the Anesthesiology Chief (AC), allegations sexual harassment/hostile work environment perpetuated by the Acute Pain Services Director (APS Director) against three employees. An investigation determined that the AC failed to respond to the sexual harassment complaints and the Agency demoted the AC and terminated the APS Director’s employment. Complainant asserts that the Acting Anesthesiology Chief (AAC) was friends with the AC and engaged in retaliatory harassment against Complainant after the AAC assumed her position of acting chief in June 2016. 2020002810 3 11. in December 2017 and on or about February 16, 2018, Complainant’s emails went unanswered as to her concerns, and as to the work assignment of an insubordinate employee by management; 12. on January 15, 2018, during a staff meeting Complainant was blamed and held accountable for problems in her unit; 13. on or about February 16, 2018, Complainant was officially demoted when she was informed via an e-mail reprimand that she was a non-supervisor; 14. in mid-February 2018, Complainant was informed that management had directed co-workers to write Complainant up; 15. on or about February 22, 2018, during a meeting, Complainant was questioned about her work performance and health, and was accused of work-related issues; 16. on or about February 23, 2018, Complainant’s locked office was searched; 17. on or about March 28, 2018, Complainant recused herself from a search committee because management had requested her recusal; 18. on May 7, 2018, Complainant’s work offices were reassigned; 19. in May 2018 and on June 5, 2018, a former subordinate acted inappropriately and snapped at Complainant; 20. on May 31, 2018, Complainant received a negative performance evaluation; 21. on June 8, 2018, Complainant learned that the Anesthesiology Chief reassigned Complainant’s scope of work duties to an Assistant Nurse Manager; 22. on February 15, 2019, Complainant was assaulted; and 23. from May 3, 2019 to August 2, 2019, Complainant’s clinical privileges were suspended. After its investigation into the accepted claims,4 the Agency provided Complainant with a copy of the report of investigation5 and notice of right to request a hearing before an Equal 4 The record indicates that Complainant’s formal complaint included three additional claims which the Agency dismissed on procedural grounds because Complainant lacked legal standing to bring these claims. On appeal Complainant does not dispute this dismissal, therefore, we need not discuss these claims in our decision below. 2020002810 4 Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a final decision. On February 18, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.6 The instant appeal followed. Complainant submitted a brief arguing that she was subjected to discriminatory and retaliatory harassment. ANALYSIS AND FINDINGS Disparate Treatment - (Claims 17, 20, 21, and 23) A claim of disparate treatment is examined under the three-part 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 5 The record indicates that a supplemental investigation was also conducted. 6 The Agency determined that claims 2, 3, 5, 6, and 13 were discrete acts that were not timely raised before an EEO Counselor within 45 days pursuant to 29 C.F.R. § 1614.107(a)(2) and dismissed these claims. However, the Agency determined that these claims were sufficiently related to Complainant’s overall harassment claim and included them in the analysis of Complainant’s claim of retaliatory harassment. Therefore, we address these claims under our discriminatory harassment analysis. 2020002810 5 Our review of the record supports that the Agency articulated legitimate non-discriminatory reasons for its actions. Recusal from Search Committee (Claim 17) The Chief of Staff (COS) explained that she created a search committee to fill a vacant position, Service Line Leader of Anesthesiology, and Complainant was a member on this committee. The COS further explained that search committee members are required to treat all applicants fairly and not jeopardize the integrity of the search process. The COS noted that search committee members are asked to recuse themselves if there is any bias or any appearance of bias preventing them from treating all candidates fairly. While Complainant initially indicated that she had no bias against any of the candidates, the COS stated that Complainant, on March 27, 2018, emailed the COS, the Chair of the search committee, and the UW Chair of Anesthesiology (UW Chair) about her concerns regarding the AAC, a candidate for the Service Line Leader of Anesthesiology position. Complainant stated in the email that AAC had accused her of inappropriate disbursement of controlled substances, unprofessional behavior toward colleagues, and committing fraud while recording a drug error in the anesthesia record. Based on the content of this email, the COS determined, along with the search committee Chair, that Complainant had a “serious personal bias” towards the AAC that put the integrity of the search process at risk. Consequently, the COS stated that she recommended that the committee chair discuss Complainant recusing herself from the committee. May 31, 2018 Negative Performance Evaluation (Claim 20) Complainant testified that before the sexual harassment investigation involving the AC concluded, the AC had recommended, in May 2016, Complainant for promotion to full Professor. However, Complainant asserted that around September/October 2016, shortly after the investigation concluded and after the AAC assumed her new role, Complainant’s promotion was denied. Complainant indicated that while the AAC had rated her highly on her 2017 VA performance review, the AAC gave Complainant “one of the worst assessments she ha[d] ever received on a UW view that same year.” Complainant explained that her promotion to full professor was contingent upon endorsement by the VA. Additionally, Complainant had testified that she had requested that the UW Chair remove the AAC as one of her evaluators, but the UW Chair refused. The AAC clarified that the performance evaluation at issue was Complainant’s 2017 UW Annual Review. The AAC explained that the evaluation was intended to be positive and above average, and the AAC noted that both she and Complainant went over the document and signed it, acknowledging agreement on its contents on June 1, 2018. 2020002810 6 A copy of the AC ‘s May 16, 2016 evaluation letter indicates that the AC believed that Complainant should be considered for promotion to a Professor level. However, the AC noted that he would ask another individual “to review [Complainant’s] portfolio and access if [Complainant] me[t] the criteria” (emphasis added) Consequently, there had not been a determination as to whether Complainant was eligible for the promotion at the time of her 2016 UW evaluation. While a copy of the AAC’s May 31, 2018 evaluation letter regarding Complainant’s 2017 UW Annual Review makes no mention of a discussion on Complainant’s recommendation for full Professor, the evaluation concludes that Complainant “had a very productive academic year.” The letter further states that Complainant “provide[s] mentorship to residents and junior faculty alike, encouraging and guiding them in their academic pursuits. Your teaching evaluations by the residents are excellent.” Reassigned Scope of Work Duties to Assistant Nurse Manager (Claim 21) Complainant stated that the AAC reassigned her routine tasks to update the Scope of Work in the Same Day Unit. However, the AAC explained that Complainant was not responsible for the Scope of Work duties and further denied any changes to Complainant’s work duties during the period at issue. The AAC explained that the Executive Assistant to the Chief of Surgery sent a June 7, 2018 email to the AAC, the Acting Nurse Manager of SDU, and the Administrative Officer for Anesthesiology (AOA) requesting review of the Scope of Service Document for the SDU. The AAC indicated that the Acting Nurse Manager volunteered to complete this task. A copy of the June 7, 2018 email corroborates the AAC’s testimony. Additionally, while the COS stated that she was unaware of any changes to Complainant’s duties, she clarified that from 2016 to 2018, the Agency began the process of changing the reporting structure of nurses. The change resulted in nurses reporting through the Nursing Executive Office chain of command instead of reporting to the Chief of Staff. Consequently, the COS explained that this reorganization impacted nurses of every clinical service line, except the Primary Care service line. Suspension of Clinical Privileges (Claim 23) The Director testified that the COS had concerns that aspects of Complainant’s care had not met the accepted standards of practice and recommended that Complainant’s privileges be suspended pending the completion of a focused clinical review. Complainant explained that while she was out on sick leave resulting from emotional trauma from being assaulted by a co-worker, she received notification that her clinical privileges were being suspended based on three clinical cases. One case involved a nurse administering 10,000 units of IV Heparin, instead of IV fluid, to a patient which resulted in the patient needing a blood transfusion. Complainant explained that she and the resident had assumed the nurse had applied IV fluid. Complainant indicated that this incident was discussed during the February 19, 2019 2020002810 7 Morbidity and Mortality Conference and there was a general consensus that the nurse, not Complainant or the resident, was at fault. Complainant explained that the second case occurred during a February 12, 2019 surgery where a patient suffered a transient complication from a local anesthetic overdose likely caused by a combination of the standard local anesthetic dose Complainant administered and the anesthetic dose administered by the surgeon. Finally, Complainant stated that the third case occurred on February 21, 2018, and involved a chart error in the anesthesia record by a nurse. Complainant indicated that the AAC had accused her of documentation fraud on February 22, 2019 related to this matter, although Complainant was not aware at the time that the nurse had made the error. Complainant stated that she subsequently corrected the error the same day the AAC made her aware. Although Complainant asserted that her privileges were suspended out or retaliatory animus, we note that Complainant’s suspension occurred on May 3, 2019, approximately ten months after Complainant filed the instant complaint on July 31, 2018. Consequently, absent direct evidence, we cannot conclude that Complainant’s suspension of clinical privileges was caused by her participation in prior protected EEO activity. A copy of the May 3, 2019 notice of suspension states that there were “credible concerns” that Complainant’s patient care did not meet the standard of care in the anesthesiology department. The notice further states that Complainant’s suspension was pending completion of a focused clinical review of the allegations made by the COS. Subsequently, Complainant’s privileges were reinstated after the review was completed. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s sex, age, and in reprisal for prior protected EEO activity. Therefore, claims 17, 20, 21, and 23 are precluded from Complainant’s harassment claim based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her sex, age, and in reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Discriminatory Harassment - (Claims 1 - 16, 18, 19, and 22) To establish a claim of discriminatory 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2020002810 8 In other words, 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 sex, age, and in reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record reflects that the Agency properly determined that Complainant was not subjected to harassment as alleged. Forced to Work with APS Director (Claim 1) Complainant testified that during the period the Agency was investigating sexual allegations against the APS Director from February 2016 through June 2016, APS Director sat directly across from her and was hostile towards her even after she had complained to the AC. However, the COS explained that Complainant never indicated, during the period the APS Director was under investigation, that she had any concerns with her own interactions with the APS Director. The COS noted that during the March 2016 investigation of the sexual harassment allegations, Complainant only indicated her concerns about the APS Director’s actions toward the trainees and did not mention being a recipient of any unwelcomed behavior from him. Denied Pay Raise (Claim 2) Complainant explained that her pay raise was contingent upon her academic promotion from Associate Professor to full Profession at UW. Complainant asserted that she did not receive her academic promotion because the AAC did not attend a UW executive meeting where Complainant’s promotion was discussed and the AAC gave Complainant an “average” rating in her evaluation for clinical and educational actives. Although the COS was not aware of Complainant’s specific situation, the COS explained that when she became the Acting Chief in March 2016, she learned that a number of physicians in the health care system had not received their biennial review for several years and were behind in getting evaluated for pay raises. The COS further explained that the human resources employee who was responsible for tracking biennials retired, the position was never backfilled, and several physicians were impacted. Drug Testing (Claim 3) Complainant stated that for the first time out of the ten years she had worked for the Agency she was summoned for drug testing. Complainant further stated that she believed that the AAC ordered the testing. Nevertheless, Complainant acknowledged that other employees were also forced to undergo drug testing. 2020002810 9 The AAC testified that Labor Relations sent notice to the Administrative Officer requesting that Complainant report for random drug testing. While the COS was unaware that Complainant was required to provide a urine sample, the COS explained that certain employees who provide direct patient care are subjected to random drug testing under the Agency’s Directive 5383 “VA Drug- Free Workplace Program.” The COS acknowledged that there are instances for non-random drug testing (reasonable suspicion drug test), but the COS indicated that those tests require approval by human resources and the director. Despite testimony from one witness that the AAC stated that Complainant had exhibited “erratic behavior” and would seek advice on possible drug testing, documentation in the record, an October 5, 2018 email, reflects that the Veterans Affairs Central Office (VACO) randomly identified and selected Complainant for drug testing. Investigation and Fact-Finding (Claim 4) Complainant stated that two nurses falsely accused her of asking them to complete a task outside of scope of their work which would have jeopardized their license. Complainant acknowledged that a fact-finding was completed, but she was never informed of the results in writing. Instead, Complainant indicated that she was verbally told that the nurses were lying about the alleged event. The COS indicated that Complainant and a nurse manager had a dispute over whether nurses could safely treat patients receiving ketamine infusions in the SDU. The COS explained that Complainant was unhappy with the nurse manager’s decision not to support administering the ketamine infusions. Although Complainant communicated her disagreement with the nurse manager’s supervisor (the Director of Nursing for Surgery), Complainant proceeded to email the Chief Nurse and requested that the nurse manager be removed immediately and replaced with another employee. Complainant reasoned that the nurse manager was underqualified clinically and administratively, to lead the SDU. The COS explained that the Chief Nurse met with Complainant and after their discussion, Complainant emailed him a summary of what she believed what actions would be taken. However, the COS stated that the Chief Nurse was upset by the email because Complainant had mischaracterized their discussion. Contrary to Complainant’s email, the Chief Nurse had not agreed to remove the nurse manager without first conducting an investigation, and he had not agreed that the nurse manager had made misleading statements. After the Chief Nurse discussed these concerns with the COS, the COS directed him to correct the inaccuracies by email to which Complainant responded reiterating that the nurse manager was not qualified and requested that she be removed. The COS stated that she was concerned that Complainant would create a hostile work environment for the nurse manager. The COS indicated that she asked Complainant to work with the nurse manager’s supervisor and let him look into the situation. 2020002810 10 The COS also stated that she asked the AAC to help Complainant understand that she was not the nurse manager’s supervisor and had no authority to order that the nurse manager be removed from the SDU. March 21, 2017 Performance Evaluation (Claim 5) Complainant asserted that the AAC gave her a poor performance rating regarding her teaching even though she had never attended any of Complainant’s teaching sessions. The AAC explained that the performance evaluation at issue was a 2016 UW Annual Review which the AAC explained was intended to be a positive and above average assessment. The AAC further explained that she and Complainant went over the document on March 21, 2017 and signed it acknowledging agreement to its contents. A copy of the March 21, 2017 UW Annual Review reflects that the AAC noted in the comment section that “[Complainant] always has the best interest of her patients as her top priority. She is a fine anesthesiologist and teacher.” Additionally, the review indicates that Complainant was rated on several critical areas including the following areas: respect, medical knowledge, integrity, psychosocial aspects of illness, management of multiple complex problems, compassion, clinical skills, comportment in the clinical environment, and team-based skills. The AAC rated Complainant on a 1 (lowest score) to 9 (highest score) point scale and gave Complainant the lowest score of 5 and the highest score of 7 in the various critical areas which is consent with the AAC’s testimony that she intended to give Complainant a positive and above average evaluation. While a copy of the AAC’s March 2017 evaluation letter regarding Complainant’s 2016 UW Annual Review makes no mention of a discussion on Complainant’s recommendation for full Professor, the evaluation concludes that Complainant “had another highly productive and successful year.” Diminished Work Responsibilities (Claim 6) Complainant stated that she was hired in 2008 as a Medical Director in the pre-anesthesia clinic and was promoted in 2015 to Medical Director in SDU. After her promotion, Complainant explained that she was given an additional 20% administrative time. Complainant explained that the AAC reassigned many of her duties including patient scheduling, resolution of employee conflicts, and chairing the Search Committee for the anesthesia clinic. The COS explained that Complainant incorrectly thought that her position allowed her to perform duties outside the scope of her position. Specifically, the COS indicated that Complainant wanted to (1) combine nursing units and determine nursing leadership structure; (2) offer a nursing leadership job to a nurse who reported to the Director of Nursing for Surgery; (3) make pre-decisional job offers to employees; and (4) make the decision to replace the nurse manager in the SDU. 2020002810 11 The COS stated that Complainant was and had always been a bargaining employee, she was not a supervisor, and she did not have the authority to conduct these actions. The COS noted that Complainant stated that she supervised residents but acknowledged that she did not evaluate residents. The COS also indicated that she was concerned that Complainant’s persistent request to have the nurse manager transferred out of the SDU was creating a hostile work environment for that employee. Finally, the COS explained that the Agency was undergoing a restructuring where nurses no longer reported to physicians and instead reported to nurse leaders. Retirement Comments (Claim 7) The AAC denied being aware of this claim. Working with AC (Claim 8) Complainant explained that before the AC was placed on administrative leave, he forwarded Complainant’s harassment complaint regarding the APS Director to the APS Director and forced her to work with the APS Director despite a no contact order. After Complainant complained, Complainant indicated that she was required to work with the AC. The AAC explained that the AC returned to work on May 15, 2017 and was allowed to work with certified nurse anesthetists. However, the AAC clarified that while the AC worked at the same facility as Complainant, neither Complainant nor the AC worked together. Nevertheless, the COS stated that there was no indication that Complainant had concerns about working with the AC after the AC returned to work in a front-line physician position following the investigation. The AAC noted that Complainant had not addressed any issues with working with the AC during the fact-finding investigation, and the AAC did not learn about Complainant’s concerns until June or July 2018, approximately seven months after the AC left the health care system. Co-Worker comment (Claim 9) The anesthesia nurse who made the comment at issue testified that her comment was unrelated to the AC, the AAC, or Deputy Chief. The anesthesia nurse explained that Complainant had requested her to complete a task which she felt was unnecessary, and she responded, “f-k it” and then proceed to comply with Complainant’s request. The anesthesia nurse further testified that she apologized to Complainant for swearing. Thereafter, Complainant reported in an August 18, 2017 email confirming that the anesthesia nurse made the comment in response to Complainant’s instruction. 2020002810 12 Ostracized by co-workers (claim 10) One of Complainant’s witnesses explained that after the AAC’s appointment, a number of physicians who did not agree with the AAC’s management style were treated differently in a manner that could be characterized as negative when compared with those physicians who strongly supported the AAC. Unanswered Emails (Claim 11), February 16, 2018 Demotion (Claim 13), Complaint Write-ups (Claim 14), Meeting on Work Performance issues (Claim 15) The COS explained that, in December 2017, Complainant believed a medical support assistant (MSA) had communicated unprofessionally with a Veteran and tried to order the MSA out of the SDU. Complainant voiced these concerns to the MSA’s supervisor who agreed to investigate the matter. After an investigation, the AAC stated that Complainant’s allegations were not substantiated. Nevertheless, the AAC indicated that Complainant continued to persist, by email, that the MSA be removed from her station which resulted in the MSA filing a hostile work environment claim. Because of Complainant’s persistence on the matter, the COS explained that she was concerned that Complainant was making the work environment difficult for the MSA. Consequently, the COS stated that she directed the AAC to inform Complainant that Complainant was not the MSA’s supervisor. The COS further stated that she emailed Complainant on February 16, 2018, and informed Complainant that because she was a physician in a non-supervisory position, she did not have the authority to determine who works in her area nor did she have the authority to tell other employees to leave. The COS indicated that she and Complainant discussed her email on February 28, 2018, and it was during that meeting where Complainant expressed concerns about the AAC following a February 22, 2018 meeting. Specifically, Complainant informed the COS that the AAC had addressed, during the February 22, 2018 meeting, a medication error, discrepancies in Complainant’s operating room records regarding narcotics, and negative interactions where Complainant was alleged to have yelled at employees and acted inappropriately. In response, the COS recommended that Complainant address these issues with the AAC. Also, during the February 28, 2018 meeting, Complainant stated that she believed that someone in her department asked other employees to write her up. In response to this concern, the COS explained that she informed Complainant that it is standard policy for a supervisor to require an employee put his/her complaint about another employee in writing. The COS further explained that this process helps the supervisor understand the allegation and provides documentation to determine how to proceed. 2020002810 13 January 15, 2018 Staff Meeting (Claim 12) The AAC testified that during the meeting at issue, there was a discussion about problems related to patient scheduling in the SDU. However, the AAC explained that the Administrative Officer took full responsibility for these issues and presented a plan at the meeting on how to address them. Locked and Searched Office (Claim 16) and Reassigned work offices (Claim 18) The COS stated that she became aware of this claim in June 2018 and immediately contacted the AOA regarding Complainant’s allegations. The AOA informed the COS that no one searched Complainant’s office. Rather, the VA Police regularly check the office for unlocked doors and inspect for patient information being left out when they find an unlocked door. The COS also addressed the AOA Complainant’s allegation that her office has been moved. The AOA indicated, as well as the AAC, that the attending and resident offices were moved in order to accommodate new nurse practitioner personnel. The move resulted in the attending and resident offices being side by side, opposed to being separated, which was considered an improvement for the attendings since they supervised the residents. Both the AOA and the AAC further indicated that the attendings’ anesthesiologist office space was a shared space for all anesthesiologists, and it was not Complainant’s personal office. Inappropriate Actions by Subordinate Against Complainant (Claim 19) Complainant testified that management officials encouraged a former subordinate to act rudely toward her. Specifically, Complainant stated that she asked an SDU Scheduler to provide recent scheduling grids and the SDU Scheduler threw a pile of papers on Complainant’s desk in a disrespectful manner. Complainant further stated that another SDU Scheduler informed her that management had ordered Schedulers not to show Complainant the grids. However, the management officials Complainant identified as responsible denied being aware of this incident. February 15, 2019 Assault (Claim 22) The COS testified that Complainant and a co-worker had a disagreement regarding a patient. The co-worker attempted to tell Complainant that it was not helpful to perform a cricoid maneuver while intubating patients and the co-worker attempted to demonstrate a cricoid maneuver on Complainant without Complainant’s consent. The COS explained that the co- worker was immediately removed from the area, issued a no contact order, an investigation was immediately conducted, and the co-worker was subsequently suspended. Considering these claims, even if true, Complainant has not produced evidence that considerations of her sex, age, or retaliatory animus motivated management’s actions toward Complainant. The record supports that Complainant had a collective bargaining position and was not a supervisor. 2020002810 14 The record further supports that management informed Complainant of the scope of her duties when she attempted to exceed them. Complainant had no authority to remove an employee from the SDU, determine nursing leadership structure, resolve employee conflicts, or make pre- decisional job offers. Consequently, management did not diminish her responsibilities. Rather, management instructed Complainant to perform duties within in scope of her position. The record reflects that Complainant’s claims about her delayed pay raise, drug testing, searched office space, and moved office space were not specific to Complainant. The record reflects that all physicians were impacted by delayed pay increases related to a human resources issue; employees who provide direct patient care, like Complainant, were subjected to random drug testing per the Agency’s policy; Agency management regularly checked unsecured office space to see if patient information was properly stored; and the moved office space at issue was a shared space for all anesthesiologists. Additionally, the record fails to reflect that management officials encouraged employees to act inappropriately towards Complainant. Finally, the record reflects that the Agency suspended the individual who attacked Complainant. Beyond her bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s sex, age, or reprisal for prior protected EEO activity. As such, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 2020002810 15 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. 2020002810 16 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 13, 2021 Date