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

Equal Employment Opportunity Commission

Jun 30, 2021

Appeal No. 2020002779 (E.E.O.C. Jun. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mitzie W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002779 Agency No. 2003-0549-2015103508 DECISION On February 24, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 25, 2020 final decision concerning an equal employment opportunity (EEO) complaint 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. BACKGROUND During the period at issue, Complainant worked as a Licensed Vocational Nurse, GS-05 at the Agency’s North Texas Veterans Healthcare System in Dallas, Texas. On August 27, 2015, Complainant filed the instant formal complaint, Complainant claimed that the Agency discriminated against her based on race (African-American) and in reprisal for prior EEO activity when: 1. in July 2014, the Nurse Manager shared “personal information” about Complainant’s living situation, health and pay grade with other employees; 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. 2020002779 2 2. on November 19, 2014, the Interim Nurse Manager told Complainant she looked like a “street walker;” 3. on February 18, 2015, the Interim Nurse Manager and the Nurse Manager gave Complainant a “vocera” to help keep track of her movements in the facility;2 4. on May 7, 2015, the Nurse Manager discussed “confidential information” regarding Complainant in a meeting, resulting in management laughing at her; 5. on May 7, 2015, the Nurse Manager instructed the Charge Nurse to “monitor Complainant] real close;” 6. on May 7, 2015, one of Complainant’s co-workers told her that she ‘do[esn’t] have any common sense” and yelled “Shut up little girl” during a meeting with the Nurse Manager; 7. on May 8, 2015, Complainant overheard the Nurse Manager state that she does not like her, wanted her monitored, and wished she had never hired her;” 8. on May 11, 2015, the Nurse Manager informed Complainant that she could no longer “float” for assignments, wanted her “monitored closely,” and provided Complainant with “escort” assignments instead of “nurse” assignments; 9. on May 13, 2015, Complainant became aware from her co-workers that the Nurse Manager stated that she is in the process of “firing her;” 10. on May 26, 2015, the interim Nurse Manager told Complainant she did not like her makeup; 11. on June 1, 2015, Complainant was verbally denied annual leave and not allowed to come in late; 12. on June 10, 2015, Complainant was only allowed to work with a Charge Nurse and restricted from starting IVs or assisting with patient care; 13. on October 23, 2015, the Nurse denied Complainant the opportunity to work overtime; 14. on October 28, 2015, the Chief Nurse told Complainant that she has low self-esteem” and repeatedly questioned her regarding why she wears her makeup “like that;” 2 The record reflects that a “vocera” is a device used to communicate with employees who perform escorting and transporting duties, as an alternative to reaching these employees via phone or intercom. 2020002779 3 15. on November 9, 2015, the Nurse Manager rated Complainant’s overall performance as “Fully Successful” on her annual performance evaluation and included negative comments to justify her rating; 16. on November 12, 2015, a patient informed Complainant that the Interim Nurse Manager and the Nurse Manager repeatedly made “negative and slanderous” comments about her before she arrived to work, stating that Complainant is “always late” and is a “bad nurse;” and 17. on November 12, 2015, the Charge Nurse informed Complainant that she was not allowed to work past her shift (i.e., work overtime), After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. Complainant, however, subsequently withdrew the hearing request. The Agency issued the instant final decision on March 25, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment: Claims 13, 15 and 17 A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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 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. 2020002779 4 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). During the period at issue, Complainant worked as a as a Licensed Vocational Nurse, GS-05 at the Agency’s North Texas Veterans Healthcare System in Dallas, Texas. The Nurse Manager and the Interim Nurse Manager supervised Complainant throughout this period. Regarding claim 13, Complainant asserted that on October 23, 2015, the Nurse Manager denied Complainant the opportunity to work overtime. The Nurse Manager (Caucasian), also Complainant’s supervisor (S1), explained that Complainant’s tour of duty was Monday through Friday from 6:00 a.m. to 2:30 p.m. The Manager stated that if management needed Complainant to work overtime or she needed to stay for some reason, Complainant needed to ask for permission before she stayed. Regarding claim 15, Complainant alleged that on November 9, 2015, S1 rated Complainant’s overall performance as “Fully Successful” on her annual performance evaluation and included negative comments to justify her rating. S1 stated that she gave Complainant a “Fully Successful” rating because Complainant had met the objectives of her functional statement at the fully successful level. S1 further asserted that there were no negative comments that were included in her evaluation. Regarding claim 17, Complainant alleged that on November 12, 2015, S1 informed Complainant that she was not allowed to work past her shift (i.e., work overtime). S1 explained that if management needed Complainant to work overtime or she needed to stay for some reason, she needed to ask permission before she stayed. She stated that all she was asking was for Complainant to follow the Agency’s policy and regulations. After careful consideration of the evidence of record, we conclude that the legitimate, non- discriminatory reasons proffered by management witnesses were not proven by Complainant, by a preponderance of the evidence, to be pretexts designed to mask race discrimination or unlawful retaliation. Harassment: Claims 1 - 12, 14, and 16 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 Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected bases -- in this case, disability and prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents occurred as alleged by Complainant and/or occurred because of her race and prior EEO activity. 2020002779 5 Complainant claimed that in July 2014, S1 shared “personal information about Complainant’s living situation, health and pay grade with other employees. S1 stated, however, that she did not discuss Complainant’s situation or health issues with anyone. There is no other evidence of record to support Complainant’s claim. S1 stated that Complainant’s claim that S1 gave her a “vocera” to keep track of her movements was not true. Specifically, S1 emphasized that a vocera is a communications device but not a tracking device. She further stated that the reason Complainant was given the vocera because she was working in the One Stop Shop. Furthermore, S1 stated that the vocera was a communications device given to Complainant so she can do her job, and that her charge nurse has one too. Complainant claimed further, that during a May 7, 2015 meeting, S1 discussed confidential information concerning Complainant in a meeting resulting in attendees laughing at her, S1 stated that it was not true. She emphasized that she has never said one word about anything that Complainant had told her in confidence. Again, there is no evidence to support Complainant’s claim. Complainant also claimed that S1 instructed a named co-worker (Co-worker 1) to monitor Complainant “real close” and another co-worker (Co-worker 2) told Complainant “you don’t have any common sense” and yelled “shut up little girl” during a meeting with the Nurse Manager. However, S1 stated that this incident did not happen as alleged. S1 stated that in regard to Complainant’s claim that May 8, 2015, she overheard S1 state that she does not like her, wanted her monitored, and wished she had never hired her. S1 again denied the allegation and said that it never happened. Complainant claimed that on May 11, 2015, S1 informed her that she could no longer “float” for assignments, wanted her monitored closely on the unit, and provided her “escort” assignments instead of nurse assignments. However, S1 asserted that the matter was the exact opposite. She explained that on that date, she was going over Complainant’s evaluation with her and reminded her that she was an LVN, and that floating is a transport position that is done by nursing assistants. Furthermore, S1 admitted that she does not like employees to float, but Complainant was not given escort assignments as alleged. Complainant claimed that on May 13, 2015, she became aware from her co-workers that S1 was in the process of firing her. S1 emphasized, however, that Nurse Managers cannot fire employees, and only the Director can fire employees. Moreover, S1 stated she would never have a discussion on such a topic with Complainant’s co-workers. In regard to Complainant’s claim that on June 1, 2015, she was verbally denied annual leave and not allowed to come in late, S1 stated that the claim was not true. S1 stated that Complainant called in for Compassionate Leave (CL) and she was off the entire day. 2020002779 6 S1 stated that Complainant’s claim that on June 10, 2015, she was the only one allowed to work with a charge nurse and restricted from starting IVs or assisting with patient care was also not true. S1 asserted that no one is asked to work with a charge nurse. S1 stated that Complainant would have to work with a Registered Nurse. Complainant claimed that on November 12, 2015, she was informed by a patient that S1 and S2 repeatedly made negative and slanderous comments about her before her arrival to work that included “she’s always late” and “she’s a bad nurse.” S1 denied her allegations. Specifically, S1 stated she knew that Complainant was coming in to work late so S1 simply informed the charge nurse that Complainant was going to be late. The Interim Nurse Manager (Caucasian), also Complainant’s second-line supervisor (S2), denied calling Complainant a street walker. Specifically, S2 stated that she had a discussion with Complainant about her wardrobe because nursing service has a dress code that requires them to wear “scrubs” or “uniforms” as appropriate for the patient care area. S2 stated, however, Complainant was not complying with the dress code. S2 stated that in regard to Complainant’s claim that she told her she did not like her makeup, she claimed that never happened. According to Complainant, the Chief of Nursing (Caucasian) told her she had low self-esteem and repeatedly questioned her regarding why she wears her makeup “like that,” the Chief denied her allegations and asserted that she did not make those statements. In sum, Complainant’s harassment/hostile work environment claim is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION After a review of the record in its entirety, including considerations of all statements on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation 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. 2020002779 7 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. 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. 2020002779 8 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 June 30, 2021 Date