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

Equal Employment Opportunity Commission

Apr 28, 2021

Appeal No. 2020000368 (E.E.O.C. Apr. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mana H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020000368 Agency No. 200H-0630-2018105039 DECISION On September 20, 2019, 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 August 28, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, VN-61050-1, at the Agency’s New York Harbor Health Care System, Brooklyn Campus facility in Brooklyn, New York. On October 14, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the basis of disability (mental and association with a disabled individual)2 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. 2 Complainant attested that she provides care for her disabled son. 2020000368 2 1. From 2011 (actual date unspecified) until the present, she was subjected to the following: a. Derogatory comments, b. Accusations of lying, c. Having to go to Employee Health before going home sick, d. Signaling her to shut up in meetings, and e. Throwing her food in the garbage; 2. On unspecified dates, she was not selected for several positions for which she applied; 3. On unspecified dates in 2011, her requests for time off on weekends were denied; 4. On unspecified dates, up through March 2018, she was not allowed to take her lunch break and/or 15-minute breaks; 5. On October 12, 2017, she was given a proficiency report that she didn’t agree with; 6. On April 12, 2018, she was required to complete a drug test; 7. On July 7, 2018, her detail to the Eye Clinic was not extended; 8. On September 21, 2018, she was made to pay back the leave she had used after being injured at work; and 9. As of November 14, 2018, her continuation of pay for her work-related injury had still not been paid after the facility discontinued it, and the false statements were sent to the Department of Labor (DOL). The Agency dismissed claims (2), (3), and (4) as independently actionable claims, pursuant to 29 CFR § 1614.107(a)(1), for failure to state a claim, noting that Complainant failed to provide sufficient information regarding these claims. It dismissed claims (2) through (6) as independently actionable claims, pursuant to 29 C.F.R. §1614.107(a)(2), for untimely EEO Counselor contact. It dismissed claim (8) as an independently actionable claim, pursuant to 29 CFR § 1614.107(a)(2), noting that it had not been brought to the attention of the EEO Counselor.3 It accepted claims (7) and (9) as independently actionable claims. It also accepted the overall harassment claim, noting that all the claims, including those it dismissed, were relevant to that claim. The Agency conducted an investigation4, which produced the following pertinent facts: Complainant identified her supervisor (Supervisor) as the management official who was responsible for her having been subjected to a hostile work environment. Regarding her allegations of derogatory comments and accusations, Complainant attested that this occurred once at employee health in front of a nurse practitioner (NP). She also described an occasion during ADR when Supervisor stated, “Now I’ll tell you the truth,” and eluded to “[n]umerous times” when she had to prove to Supervisor that she was not lying. 3 Although the Agency initially dismissed claim (8), it adjudicated this claim in its FAD. 4 The allegations in claims (2), (3), and (4) were not investigated. 2020000368 3 Complainant also attested that she had been subjected to years of continuous disrespect and false allegations. She described being treated as if she were not a nurse and attested that she was supervised without just cause or without being told why she was being supervised by other RNs. She attested that Supervisor waved her hand at her to “shut up” during nursing meetings whenever she attempted to contribute to the discussion but allowed the other staff members to participate in the conversation. Complainant also attested that a coworker relayed that Supervisor stated that Complainant was a drug addict. The record includes a statement from Complainant generally describing derogatory comments that Supervisor allegedly made to or about Complainant, including things such as “what is wrong with your hair,” “what are you wearing,” and “you smell like funk.” It also describes incidents where Supervisor allegedly said that the patients said Complainant looked like a “crack whore.” Supervisor denied making derogatory comments to or about Complainant, accusing Complainant of lying, and signaling Complainant to shut up. Complainant also attested that she was required to go to Employee Health before going home sick. She attested that this occurred numerous times and noted one occasion during which NP was upset that Complainant had been sent to Employee Health for a chronic condition when she could just go home using sick leave. Supervisor attested that it is Agency policy to escort employees to Employee Health. Complainant also attested that Supervisor threw her lunch in the garbage and reported it to the Union and Human Resources. Supervisor attested that she did not throw Complainant’s food in the garbage. She explained that Complainant’s food was not labeled with her name and date and during team environmental rounds, all foods without a name and date were removed and placed on a dining table in the staff lounge. She further explained that when Complainant reported for duty, she took her food to the psychiatric unit station desk and became irritated when Supervisor instructed her to remove the food from the nursing station as it is an infection control policy violation. Complainant also submitted a statement indicated that she applied for five positions in mental health, under Supervisor’s leadership, and did not get any of them. Complainant attested to her allegations relating to the October 12, 2017 proficiency report. She attested that she did not agree with the assessment of her work performance. She alleged that Supervisor attempted to grade her as unsatisfactory, but she protested, and it was changed to a satisfactory grade. Complainant also alleged that Supervisor stated that her reason for grading her as unsatisfactory was that she was not at work enough and mentioned Complainant’s use of FMLA. 2020000368 4 Supervisor attested that the proficiency report at issue was Complainant’s annual proficiency report. She explained that the process included an in-person discussion and information to support or enhance proficiency. She attested that Complainant did not communicate any disagreement with her proficiency and signed the report. Complainant attested that, in April or May 2018, she was required to submit to a drug test. She attested that Supervisor told her that she was being drug tested in front of another nurse and proceeded to follow Complainant to Human Resources for the drug test. Complainant attested that the test was positive only for prescription medication and there was no disciplinary action as a result of the test, but she was humiliated. Supervisor attested that random drug tests are requested by Human Resources and the supervisor’s responsibility is to provide the request with the forms that inform the employee of an official request. Supervisor attested that a Labor Relations Specialist notified her by telephone and email of their request for Complainant to report to Human Resources for the drug test. Complainant attested that, on July 7, 2018, her detail to the Eye Clinic was not extended. She attested that she was notified by a supervisor at the Eye Clinic a couple of weeks prior to her being returned to her regular duty station. She attested that she was told they sent her back because they did not need another nurse in the Eye Clinic. Supervisor explained that Complainant was detailed to the Eye Clinic because she had been involved in a hostile dispute with staff and patients and Supervisor was concerned about Complainant’s safety on the unit. She explained that the Surgical Care Line Manager was the only service that accepted the request for Complainant to be detailed. She explained that the detail was for 30 days, but it was extended for another 60 days, for a total of 90 days at the Eye Clinic. Supervisor attested that the Eye Clinic supervisor met with Complainant about the end of her detail and Complainant did not request an extension or otherwise communicate a request to remain in the Eye Clinic or detail to another unit. Complainant attested that she was off duty for 45 days due to a workplace injury. She alleged that Supervisor wrote an untruthful statement to DOL which caused her to lose her case and to have to pay back $66 bi-weekly. She attested that Supervisor initially took Complainant’s entire paycheck until she scheduled a payment plan with payroll. Complainant attested that Supervisor told her that she had to pay back the used leave and “took it upon herself to take [her] entire first paycheck when [Complainant] returned to work.” Further regarding her pay, Complainant alleged that Supervisor did not follow protocol and get an approval by payroll. Complainant attested that she brought it up with the timekeeper, her response was that she did what Supervisor told her to do. Supervisor attested that she could not require Complainant to pay back leave without written instructions from VA COP Manager and Payroll. She explained that employees are instructed regarding leave pay back when a claim is denied by DOL. She attested that there was no evidence, including Agency records, that Complainant was made to pay back leave used for a 2020000368 5 workplace injury. Supervisor further attested that Complainant was paid timely and VA COP Manager provided approval for continuation of pay from DOL. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant asserts that there are additional witnesses to the alleged hostile work environment and additional incidence of relevance. She argues that the investigation was inadequate and insufficient evidence was gathered. She submits a statement from a Labor Representative in support of the complaint, generally indicating that Complainant has FMLA leave, due to her caregiver responsibilities that are difficult to manage with her work schedule. She argues that Supervisor should have been able to use less staff on the weekends or arrange alternative schedules for Complainant to facilitate her caregiving responsibilities. She also states that Supervisor required Complainant to go to Employee Health prior to taking sick leave and has stated that Complainant is lying. She also describes Supervisor’s meeting with Complainant and questioning or disciplining her and speaking harshly to her. She also states that Supervisor failed to intervene when employees were spreading rumors about Complainant. The Agency has not submitted a statement or brief in response to Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Dismissed Claims An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment 2020000368 6 for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. Here, we concur with the Agency that claims (2), (3), and (4) fail to allege sufficient facts, which if proven true and considered together, would establish that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Her allegations that, on unspecified dates, she was not selected for five positions, her requests for time off on weekends were denied, and she was not allowed to take her breaks, absent more details, are insufficient to state a claim. Furthermore, to the extent Complainant alleges that her time off requests were in 2011 and she was denied breaks “up through March 2018,” we find these claims are untimely, as they allegedly occurred more than 45 days prior to Complainant’s initial contact with an EEO Counselor, which the record shows was on July 6, 2018. Regarding claims (5) and (6), which allegedly occurred on October 12, 2017 and April 12, 2018, respectively, we also find that these claims occurred more than 45 days prior to Complainant’s initial EEO Counselor contact. Although Complainant referenced using ADR during her EEO counseling, she has not provided a justification for extending or tolling the time limitation. Therefore, in so far as these claims suggest discreet claims of discrimination, we find their dismissal was proper. Harassment Claim 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). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in 2020000368 7 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 own disability or her association with her disabled son. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Some of Complainant's harassment allegations can generally be described as to her objection to being spoken to unpleasantly, including being subjected to derogatory comments, accusations of lying, and being told (or gestured) to shut up. We find these allegations are insufficiently severe or pervasive to have altered the conditions of Complainant’s employment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). The allegations, assuming they are true, were isolated incidents that are insufficient to support a claim of harassment. See Rennie v. Dalton, 3 F.3d 1100 (7th Cir. 1993). We find Complainant's other allegations generally reflect her disagreement with how she was managed and supervised. These allegations involve having to be escorted to Employee Health before going home on sick leave, not receiving desired schedules, not being selected for positions, workplace policies regarding food, the administration of proficiency reports/assessments, Agency policies concerning random drug testing, the length of detail assignments, and leave and continuation of pay procedures relating to workplace injuries. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Although Complainant asserts that the Agency acted discriminately, there is insufficient evidence to support the assertion that her disability or her association with her disabled son played a role in the incidents at issue. Thus, Complainant's allegations, even if true, are insufficient to support this claim. Disparate Treatment Claims 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 a complainant to prevail, he or she must first 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 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, non-discriminatory reason for its actions. See Texas 2020000368 8 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, as here, the agency has articulated legitimate, nondiscriminatory reasons for its actions 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). As noted above, the Agency determined that Complainant’s allegations in claims (7), (8), and (9) give rise to allegations of disparate treatment, as she disputed the reason her detail was not extended and alleged that she had to inappropriately repay leave and was denied continuation of pay.5 During the investigation, Supervisor articulated legitimate, non-discriminatory reasons for the disputed actions. With respect to Complainant’s detail not being extended, Supervisor explained that Complainant’s detail had been extended to 90 days and, when it was coming to an end, Complainant did not indicate that she wanted to remain in the Eye Clinic. Regarding Complainant’s allegations of having to repay leave and not being paid continuation of pay, Supervisor explained that decisions to repay leave are communicated to employees when DOL denies their claims and the record does not show that Complainant was made to pay back leave that she used for her workplace injury. Supervisor also explained that the VA COP Manager approved Complainant for continuation of pay from DOL. Although Complainant has alleged that she was subjected to discrimination, the record does not show that her disability or association with her disabled son played any role in the Agency’s actions. Therefore, we find she has failed to meet her ultimate burden of proving, by a preponderance of the evidence, that the Agency’s actions were motivated by discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 5 Claims involving OWCP/DOL administrative proceedings, such as the allegations in claim (9), fail to state an EEO claim, as they are collateral attacks, i.e., challenges to another forum’s proceedings. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); see also Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). Because they fail to state a claim, such claims, including those in claim (9), are subject to dismissal, pursuant to 29 C.F.R. § 1614.107(a)(1). 2020000368 9 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2020000368 10 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ____________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 28, 2021 Date