[Redacted], Naomi K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Aug 18, 2022

Appeal No. 2021000627 (E.E.O.C. Aug. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Naomi K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2021000627 Hearing No. 460-2018-00366X Agency No. 2003-0580-2017103869 DECISION On October 31, 2020, 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 October 2, 2020 final order concerning her 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., and 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 (RN), Case Manager Supervisor, in Veteran Care and Transitional Services (VCTS) at the Debakey VA Medical Center (VAMC) in Houston, Texas. On October 4, 2017, Complainant filed an EEO complaint alleging, as amended, that the Agency discriminated against her on the bases of her race (African American), color (“caramel complexion”), age (46), and reprisal for prior protected EEO activity (May 2017 allegation of harassment against her supervisor) 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. 2021000627 2 1. In May 2017, management removed Complainant’s supervisory duties from her RN Case Manager Supervisor position. 2. In August 2017, management denied Complainant’s request to change her tour of duty permanently. 3. On October 2, 2017, management returned Complainant to her previous work duties and under the supervision of the Medical Care Line Supervisor (S1). 4. In February 2018, management failed to pay Complainant for approved overtime. 5. In May 2018, management suspended Complainant for seven days. 6. Between May 2017 and May 2018, management subjected Complainant to hostile work environment harassment as to assigning her additional workload of case management responsibilities for the Ear-Nose-Throat (ENT) and Plastics Department; accusing Complainant of insubordination and threatening to write her up because she would not accept additional workload; preventing Complainant from attending Inpatient Length of Stay (ILOS) meetings, which negatively impacted her as a Supervisor, and informing her staff that she was prohibited from attending ILOS meetings; S1 restructuring a cascade (an emergency contact list) and naming herself as the supervisor; the VCTS Chief (S2) yelling at Complainant and demanding she sign management inquiry findings without reviewing or changing them; management assigning Complainant an unfair workload preventing her from completing her self-input; management threatening Complainant with discipline if she did not accept a work assignment; undermining Complainant’s supervision of the Case Manager staff; informing Complainant of mandatory training that she could not attend due to heavy workload; S1 taunting and then lunging at Complainant in a meeting; directing Complainant to return a key from an absent Case Manager’s office and instructing her to work from her office only; S1 and S2 entering Complainant’s locked office; denying Complainant’s request for supervision change; S1 failing to stay away from Complainant; and S1 falsifying the contents of an email. Complainant’s harassment claim also includes the incidents alleged in (1) through (5) above.2 Management witnesses stated that Complainant alleged that her immediate supervisor (“S1”), the Medical Care Line Supervisor, was harassing her by asking her to take on additional case management support and undermining her authority with her staff (the case managers). 2 We consolidated and renumbered Complainant’s claims as appropriate for efficiency. 2021000627 3 The Agency conducted a management inquiry into Complainant’s concerns and, between June 2017 and September 2017, placed Complainant under the direct supervision of the VCTS Deputy Director (“S3”). Management witnesses stated that Complainant was not relieved of her supervisory duties. During that time, S1 took a detail assignment outside of VCTS and Complainant worked collaboratively with the manager who acted in S1’s position. S1 stated that the management inquiry determined that Complainant was insubordinate, and a three-day suspension was recommended. However, in the final decision, the suspension was reduced to a reprimand. S1 stated that the tasks requested of Complainant were found to be within her Agency functional statement. S1 stated that Complainant wanted a purely administrative supervisory position, but that was not what was required. Complainant’s position was a working (patient care coordination) supervisory position. Further, management wanted Complainant to conduct executive briefings and take on the ENT and Plastics Team, but she refused. S1 stated that Complainant accepting case management of ENT and Plastics was not a large workload, it was just enough to relieve some of the workload from the Case Manager staff. S1 informed Complainant that she no longer needed to attend ILOS meetings because she was not presenting information because patient care was a greater priority. S1 stated that Complainant was found to be insubordinate because she refused to take on patient care coordination. S1 stated that Complainant’s tour of duty was changed temporarily under S3, but approved permanently when she returned from her detail and resumed as Complainant’s supervisor. S1 stated that there was no lapse in the change of Complainant’s tour since it was granted. S1 stated that she informed the timekeeper of Complainant’s change of tour. S2 stated, for the cascade (emergency contact listing), Complainant completed the information but there were some errors and she did not submit corrections. S2 stated that it was important that the cascade information be correct, so Complainant’s supervisor, S1, submitted the changes. S2 denied yelling at Complainant and stated instead that she presented the management inquiry findings to Complainant, who wrote all over the document. S2 stated that she asked Complainant to sign the document with her handwritten changes and notes on it. S2 stated that management believed in chain of command and told Complainant’s staff to speak with her first, unless the concerns were about the supervisor. S1 stated, when she returned from her detail, the management inquiry was complete, and Complainant’s allegations were found unsubstantiated, so management returned Complainant to S1’s supervision. Management had a discussion with Complainant about returning to S1’s supervision and taking on Cardiac Thoracic temporarily. S2 stated that Complainant’s staff complained to S1 about the manner in which Complainant was assigning team coverage. That is why Complainant was asked to take on additional case management support because her team was “drowning.” S2 stated Complainant’s staff alleged hostile work environment so management removed her from supervision of those who made allegations against her, pending a fact-finding inquiry. Complainant was later returned to her supervisory duties. S2 noted that Complainant’s recommended disciplinary actions were a consideration in her supervision removal. 2021000627 4 S2 stated that management requested an office key back from Complainant because several case managers sat in that office and it was disruptive for Complainant to be going back and forth when it was not her office. Management went into Complainant’s office to leave a hard copy of a letter on her desk when she did not answer. S2 stated that delay of Complainant’s overtime pay was an oversight, and she was later paid. In addition, S2 stated that there was no “stay away” order between Complainant and S1, and that management issued Complainant a suspension as a result of the fact-finding investigation about her. The Agency offered Complainant a Two-Year Letter of Alternative Discipline, but she declined it, so the suspension was affirmed. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined that no genuine issues of material fact existed, and the complaint did not warrant a hearing. On September 30, 2020, the assigned AJ issued a decision finding no discrimination or unlawful retaliation was established. Specifically, the AJ found that Complainant’s response, at the hearing stage, was very limited in scope as it did not address race, color, or age. The AJ found that Complainant abandoned those bases and reprisal was the only remaining basis. Further, the AJ found that Complainant failed to establish a nexus between the actions alleged and a discriminatory or retaliatory motive. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination or retaliation as alleged. The instant appeal from Complainant followed. On appeal, Complainant stated that she did not abandon the bases of race, color, or age. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2021000627 5 In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Hostile Work Environment 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 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 race, color, age, or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, we find that Complainant failed to establish discriminatory harassment. Essentially, it appears that Complainant disagreed with management on what the responsibilities were for her RN Case Manager Supervisor position. Complainant stated that her time was consumed by supervisory tasks over the case managers she supervised. Management stated that there were occasions in which Complainant could perform patient care coordination duties - case management work - to relieve the workload of her staff. Complainant alleged that her supervisor, S1, harassed her about taking on additional duties. The Agency investigated the matter, during which time S1 was on a detail outside of VCTS and the Deputy Director, S3, was Complainant’s supervisor. The Agency determined that Complainant’s harassment claims against S1 were unsubstantiated and that Complainant was insubordinate. The Agency found a suspension appropriate, but the suspension was then reduced to a reprimand. Management informed Complainant that she no longer needed to attend ILOS meetings, stating that she did not present at the meetings and patient care duties were more important. 2021000627 6 Following the management inquiry of Complainant’s claim against S1 and the finding that it was not substantiated, the Agency returned Complainant to S1’s supervision when she returned from detail. There were occasions in which Complainant disagreed with the manner in which management handled her staff, an emergency contact list, her use of an office key, entering her office when she was away, and more. In addition, management removed Complainant from supervising staff who alleged harassment against her, pending an investigation. She was later returned to her supervisory duties. The Agency proposed a suspension of Complainant, offered her a Two-Year Letter of Alternative Discipline, and then sustained the suspension when she denied the alternative. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Service, EEOC Appeal No. 01990799 (March 13, 2002); see also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that management was motivated by discriminatory or retaliatory animus. Complainant’s claim of ongoing discriminatory harassment is precluded based on our findings that she 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. 01982923 (September 21, 2000). Further, to the extent that Complainant alleged disparate treatment, we find that Complainant failed to establish, by a preponderance of the evidence, that the reasons proffered by management witnesses for the disputed actions were a pretext masking discrimination or unlawful retaliation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision finding no discrimination or unlawful retaliation was established. 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 2021000627 7 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. 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. 2021000627 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 August 18, 2022 Date