[Redacted], Nery C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 2, 2021Appeal No. 2020002030 (E.E.O.C. Aug. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nery C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020002030 Agency No. 200P-0663-2018102966 DECISION Complainant timely 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 December 6, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the record is adequately developed to allow the Commission to determine if the Agency subjected Complainant to disparate treatment discrimination and a hostile work environment on the bases of disability, age, and reprisal for prior protected EEO activity, as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse, Nurse II, Patient Care Services, Outpatient Evaluation Center (OEC), Same Day Unit (SDU) in the Agency’s VA Medical Center in Seattle, Washington. Report of Investigation (ROI), at 83. Prior 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. 2020002030 2 to December 12, 2017, Complainant used extensive sick and annual leave due to hip replacement surgery as well as the removal of an ovarian mass, among other conditions. Complainant also suffered a work-related injury to her shoulder on December 12, 2017, after she tripped over a computer cord. On January 8, 2018, Complainant’s first level supervisor (S1) issued Complainant a leave restriction memorandum, instructing her to provide the Agency with verifying medical documentation in support of any sick leave taken over the ensuing six-month period. ROI, at 106-109. The memorandum noted that from January 2, 2017, through January 1, 2018, Complainant was absent from work 25% of the time and used 263 hours of annual leave and 191 hours of sick leave. Id. On January 23, 2018, Complainant provided S1 with a note from her doctor, writing that she had medical restrictions involving forward reaching movements, such as taking a patient's vital signs or administering an EKG, as a result of the December 12, 2017, workplace injury. Id. at 98. On February 2, 2018, Complainant filed a grievance with the Union regarding the leave restriction memorandum issued to her by S1. Id. at 142, 401. As a result, on February 14, 2018, a grievance meeting was held with S1, an HR employee, and a Union Representative. During the meeting, Complainant read a prepared statement, accusing S1 of retaliation and harassment. Id. at 49, 142. Days later, on February 16, 2018, S1 sent Complainant an email, writing that in order to keep Complainant safe while she recovered from her injuries, she proposed a temporary transitional duty reassignment to the phone room. Id. at 9. S1 explained to Complainant that this temporary position would not require any walking, twisting, turning, bending, lifting, or any direct patient interaction. Id. at 128. Complainant however declined to accept the temporary assignment to the phone room, asserting that many of the duties in the phone room were restricted by her doctor. Complainant therefore requested to stay in the same unit and stated that a transfer was not necessary. Complainant subsequently received an email from S1 on February 22, 2018, which Directed Complainant to report to the Medical Support unit because she was being reassigned to a Medical Support Assistant (MSA) position. Complainant believed that the MSA position conflicted with her medical restrictions and asked that she remain in her current position. Id. at 90. Complainant identified another Nurse who was on light duty but who was not made to transfer to another position by S1. A Nurse Manager also averred that she could not explain why S1 allowed this light duty Nurse to stay in the OEC but chose to reassign Complainant. Id. at 197. The Nurse Manager attested that both S1 and this Nurse performed the same duties, and she believed that S1’s decision to reassign Complainant appeared to be suspicious and unjustified. Id. On February 27, 2018, Complainant went to S1’s office to deliver a doctor’s note, informing S1 that her restrictions were similar to her previous doctor’s note. ROI, at 399-400. 2020002030 3 Complainant and S1 then began arguing with each other and raising their voices. Id. While Complainant was standing in the doorway, S1 began closing the door on her. Id. When Complainant raised her hand to avoid having the door hit her, Complainant’s hand briefly touched S1’s upper chest. Id. Complainant then contacted the facility to file a police report, but S1 intercepted the police when they arrived falsely accusing Complainant of assault. Id. S1 specifically accused Complainant of grabbing her sweater pulling her towards her and pushing her backwards in one full motion. Id.2 According to Complainant, immediately after her altercation with S1, she went to Employee Health and was given a release from duty slip saying that she may go home for the rest of the day. After Complainant left work, S1 emailed Complainant writing, in pertinent part, that Complainant was not given permission to leave the unit nor granted authorization of sick leave and would be charged with AWOL for leaving early on February 27, 2018. Id. at 146. On March 5, 2018, the Agency’s automated time and attendance system generated a notice that was forwarded to Complainant's email. The notice wrote that Complainant left work early on February 27, 2018, without supervisory approval, and therefore would be charged with AWOL for the remainder of her shift for that day. The notice further indicated that Complainant took "unauthorized" sick leave on February 28, 2018, and March 1, 2019. On April 27, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of disability, age, and reprisal for prior protected EEO activity when: 1. On January 8, 2018, S1 issued her a leave restriction memorandum; 2. On February 27-28, and March 1, 2018, she was charged with being Absent Without Leave (AWOL); 3. On February 22, 2018, she was reassigned to a Medical Support Assistant position which was outside the scope of her nursing duties and in violation of her physician- imposed work restrictions; and 4. On January 8, 2018, she was subjected to harassment to include, but not limited to the following: S1 told her that she should medically retire and informed her that she may be reassigned from her current duties. 2 On May 14, 2018, the Agency submitted an internal Preliminary Fact-Finding Investigative Report regarding Complainant’s retaliation and harassment allegations against S1. The Report determined, among other things, that S1 falsely accused Complainant of assaulting her on February 27, 2018. Id. at 399-400. The Report also noted that employees were fearful of S1 and afraid of S1 “targeting” them and that a “[m]ajority of staff felt unsafe bringing up issues with [S1] for fear of retribution.” Id. at 400-401. 2020002030 4 On June 7, 2018, the Agency issued a Notice of Partial Acceptance/Dismissal of Complainant’s complaint. Therein, the Agency accepted claims 2-4 for investigation. The Agency dismissed claim 1 pursuant to 29 C.F.R. § 1614.107 (a) (4) for raising a matter in a negotiated grievance procedure which permits discrimination complaints. Following 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). The Agency subsequently 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 Agency found that Complainant did not establish a prima facie case of discrimination based on reprisal with regard to claims 2 and 3. In so finding, the Agency noted that Complainant alleged that she was subjected to retaliation for utilizing the grievance process and engaging in whistleblower activities which are not protected EEO activity under Commission regulations. The Agency found that Complainant had not engaged in protected EEO activity until her EEO Counselor contact on March 13, 2018. The Agency therefore noted that claims 2 and 3 could not have been motivated by retaliatory animus, as Complainant’s EEO activity had not yet occurred. With respect to Complainant’s claims based on disability and age, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not establish were pretextual. The Agency specifically noted, with regard to claim 2, that Complainant was threatened with an AWOL charge because she left her duty station without supervisory approval and took sick leave without following the requirements of the sick leave memorandum that she was issued on January 8, 2018. In addressing claim 3, the Agency noted that Complainant was reassigned to the MSA position because she provided S1 with a doctor’s note, indicating that her shoulder injury prevented her from performing rudimentary clinical duties, such as taking a patient's vital signs or administering an EKG. CONTENTIONS ON APPEAL Complainant’s Brief on Appeal On appeal, Complainant, through her attorney, notes that prior to December 12, 2017, Complainant required extensive sick leave due to hip replacement surgery as well as the removal of an ovarian mass. Complainant also notes that she suffered a work-related injury to her shoulder on December 12, 2017, after she tripped over a computer cord. Complainant states that she made a complaint with the Director of Nursing, asserting that the leave restriction memorandum issued to her was motivated by discriminatory and retaliatory animus for her use of medical leave associated with her hip replacement surgery, removal of her ovarian mass, and work-related injury. 2020002030 5 Complainant maintains that S1 showed hostility towards her conditions and her work-related injury, which included yelling at her immediately after her injury. Complainant cites to an email dated January 8, 2019, written by S1 to another employee: …now [Complainant] has gone back to Occ Health and has received a fourth duty report, greatly limiting her "capacity to function" .... It appears that she will do whatever it takes to avoid moderate duty and altogether banish full duty from her career repertoire. ROI, at 409. Complainant maintains, moreover, that on January 29, 2018, S1 said she had met with a member of the union during work hours without permission and said she had met with her union representative without prior management approval in violation of Agency policy. Complainant additionally asserts that S1 accused her of being AWOL on February 27 and 28, as well as March 1, 2018, when she was clearly out on approved medical leave. Complainant maintains that another employee averred that S1 was advised that she was on approved leave during the relevant time. Complainant further maintains that S1 suggested that she should medically retire upon handing her the leave restriction memorandum. Complainant also contends that she was treated differently than a similarly situated younger female nurse who could continue working in her same position even though she had similar medical restrictions. Complainant also cites to another email sent by S1 to all Nurse Managers on February 21, 2018, wherein S1 referenced her, writing that there were some "subterranean management issues ... " concerning her (Complainant). Complainant asserted that she received numerous comments from multiple individuals who communicated to her that they knew that this reference was about her and that they found it to be demeaning. Agency’s Response In response, the Agency requests that we affirm its final decision finding no discrimination. 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 (EEO MD-110), 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”). 2020002030 6 ANALYSIS AND FINDINGS Inadequate Investigative Record Upon review, the Commission finds that the investigative record in this case is inadequate. Therefore, the Commission cannot make a reasoned determination on the merits of the complaint. EEOC Regulation 29 C.F.R. § 1614.108(b) and EEO MD-110 at Ch. 6 § I, require agencies to develop an impartial and complete factual record. An appropriate factual record is one that allows a reasonable factfinder to draw conclusions as to whether discrimination occurred. Id. An investigator must be thorough. “This means identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome.” Id. at § V.D. “To ensure a balanced record, it is necessary only to exhaust those sources likely to support the complainant and the respondent. An investigation conducted in this manner might reveal that there is ample evidence to support the complainant's claims and no evidence to support the agency's version of the facts, or vice versa. The best type of investigation allows for complainant to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames.” Id. Here, we note that just days after the February 14, 2018, grievance meeting wherein Complainant accused S1 of retaliation and harassment, S1 sought a reassignment for Complainant.3 Complainant subsequently received an email from S1 on February 22, 2018, which directed Complainant to report to the Medical Support unit because she was being reassigned to a MSA position. However, a Nurse Manager explained that S1 allowed a Nurse on light duty who performed the same duties as Complainant to stay in the OEC. ROI at 197. This Nurse Manager believed that S1’s decision to transfer Complainant was suspicious and unjustified. Id. We note, however, that this reportedly similarly situated Nurse was not asked by the investigator to provide an affidavit and the record also does not include any other documentation regarding the similarly situated Nurse. We find that such evidence regarding the similarly situated Nurse is relevant as to whether Complainant can establish that S1’s decision to reassign her was pretextual for discrimination based on her protected classes. In addition, the Agency’s final decision notes that the record does not reflect whether the AWOL threats made against Complainant on February 27 and 28, 2018 and March 1, 2018, were effectuated. 3 We find that the Agency erred in finding that Complainant had not engaged in EEO activity until her EEO Counselor contact on March 13, 2018. In so finding, we note that Complainant accused S1 of retaliation and harassment during the February 14, 2018, grievance meeting. With regard to reprisal discrimination, the Commission has stated that the anti-reprisal provision of Title VII protects not only those who participate in the EEO process, but also those who oppose discriminatory employment practices. “A variety of activities has been found to constitute opposition . . . Because the enforcement of Title VII depends on the willingness of employees to oppose unlawful employment practices or policies, courts have interpreted section 704(a) of Title VII as intending to provide “exceptionally broad protection to those who oppose such practices.”' 2020002030 7 However, the investigator requested documentation regarding the alleged AWOL charges for the dates at issue and sent a follow-up email to the Agency regarding the requested documentation. ROI, at 68, 475. The Agency however did not provide the investigator with this requested documentation, and therefore (as the Agency notes in its decision) the record does not reflect whether the AWOL threats at issue were ever effectuated. EEOC Regulations provide that the Agency and any employee of a Federal agency shall produce such evidence as the investigator deems necessary. 29 C.F.R. § 1614.108(c)(1). Therefore, the Commission is unable to determine whether Complainant was subjected to an adverse action with respect to the AWOL threats, and we note that Complainant has alleged that he was subjected to disparate treatment discrimination when he was charged with AWOL on February 27 and 28, 2018, and March 1, 2018. We note that employees attested that Complainant was specifically asked by the Agency’s Employee Health to go home and take sick leave on the dates in question. If the AWOL threats against Complainant were realized and effectuated by S1, such evidence could show that S1’s reasons were pretextual for discrimination based on one or more of her protected classes. Accordingly, we conclude that the present record lacks necessary information and REMAND this case to the Agency to conduct a supplemental investigation CONCLUSION We VACATE the Agency's final decision and REMAND Complainant's complaint in accordance with this decision and the Order herein. ORDER TO SUPPLEMENT RECORD (B0617) Within one-hundred and twenty (120) calendar days of receipt of this Order, the Agency shall conduct and complete a supplemental investigation consistent with the requirements of 29 C.F.R. § 1614.108(b), in EEO MD-110 at Chapter 6, and consistent with this decision. The supplemental investigation shall include, but is not limited to: (1) an affidavit from the Nurse identified by the Nurse Manager who was on light duty and reportedly performed the same duties as Complainant but allowed to stay in the OEC; (2) any correspondence or other documentation regarding the medical limitations of the Nurse who was on light duty and reportedly performed the same duties as Complainant but allowed to stay in the OEC; (3) whether the AWOL threats made against Complainant on February 17 and 28, 2018 and March 1, 2018, were effectuated by the Agency; and (4) the Agency shall ensure that the investigator obtains any other affidavits or documentation not specifically requested in this Order, and consistent with this opinion, which may be relevant in determining the merits of Complainant's complaint. The Agency shall issue to Complainant a copy of the supplemental investigative file and shall notify Complainant in writing of her right to request a hearing before a Commission AJ or the issuance of an Agency decision, unless the matter is otherwise resolved. 2020002030 8 If Complainant requests an Agency decision without a hearing, the Agency shall issue its decision within sixty (60) days of receipt of Complainant's request. In accordance with EEO MD-110 at Chap. 9 § IX.E, the Agency shall give priority to this remanded case to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the directed action has been taken. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2020002030 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. 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). 2020002030 10 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 August 2, 2021 Date Copy with citationCopy as parenthetical citation