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

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2021000054 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxanna B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000054 Agency No. 2003-0660-2019103784 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 3, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant began working at the Agency in January 2019, when she was hired as a Women’s Healthcare Coordinator at the Agency’s Women’s Center located in Salt Lake City, Utah. RMO 1 was the Program Manager during the relevant time. RMO 2 was a staff nurse in the same service as Complainant, until April 2019, at which time she became the Assistant to the Nurse Manager in the same unit. On April 2, 2019, RMO 1 issued Complainant a Probationary Warning Letter documenting numerous concerns with Complainant’s conduct and performance. The letter noted rather than engaging the Mammogram Navigator regarding clinical duties, Complainant went to various providers for information. 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. 2021000054 2 The letter noted that Complainant’s job had both clinical and management responsibilities and she had been repeatedly directed to focus on the clinical aspects of her position instead of the data management portion, which she would later learn after she could independently perform her clinical duties. RMO 1 had received feedback that at times Complainant had been argumentative or unwilling to follow direction. The letter noted on one occasion Complainant told the PACT Care Manager (Witness 3) that she decided to work on Women’s Webinars instead of her clinical duties. The letter stated Complainant was not presently successful at the clinical portion of her job, and that there was no need to complicate things by prematurely adding the data management piece. In addition, it was noted Complainant had difficulty finding all the information needed to scrub patient lists; one of the providers reported she needed close supervision with certain tasks and was failing to do other tasks despite repeated discussion; she mislabeled a swab with the wrong patient’s name; and she failed to properly triage one of her patients with chest pain. In her response, Complainant expressed confusion about what she was supposed to be doing in her job and raised concerns with the lack of training she had received. Complainant stated she felt she has “overwhelmed management with questions” and “communicated in the wrong fashion” and apologized for this. She noted that on February 28, 2019, RMO 1 stated to her to “quit asking so many questions I do not have the answer to!” Complainant apologized for branching out and talking to others when she should ask only management and explained this was her attempt to resolve questions when management was busy. Complainant stated she was repetitively told to not do what is in her job description, i.e. databases and systems. Complainant acknowledged that she had inquired about the roles at the Agency for Licensed Practical Nurses (LPNs) and Registered Nurses (RNs) as she felt she was doing the same thing as LPNs. She stated it was explained that because women’s health was so sensitive, management only wanted the RN to check in on the patients so there was one face present (e.g., the person scrubbing on the phone was the same person checking them in for the doctor). Complainant stated scrubbing was not taught to her in orientation. She stated that a doctor showed her a note in a chart that was a scrubbing note from a prior staff member and from there Complainant taught herself how to do it. Regarding the incident triaging the patient, Complainant stated she understood her error and would not repeat that mistake in the future. Regarding the mislabeled sample, she said, “I completely own that. I made a big error.” She apologized and stated she has taken steps to make sure it does not happen again. In her response, Complainant again asked when she would begin the nonclinical side of her job. On April 26, 2019, Complainant submitted a letter of resignation. She stated that working for the Agency “has been a good experience that [h]as afforded me many opportunities to learn and grow.” She stated she believed “the wrinkles will be ironed out in the department and become smooth for the Women’s Health Care Team.” During her exit interview on May 9, 2019, Complainant told the Acting Primary Care Nurse Manager (Witness 2), that on May 6, 2019, the Mammogram Navigator, told her RMO 2 commented to the Mammogram Navigator that, “I think the only labor and delivery [Complainant] has ever done is helping her sister wives give birth” and encouraged the Mammogram Coordinator to “Google” Complainant’s ex-husband. 2021000054 3 As a result, Witness 2 began a fact-finding interview the same day as Complainant’s departure from the Agency. Witness 2 noted RMO 2 denied making the comments and said that the Mammogram Navigator is the one who made the comment and encouraged “Googling” Complainant’s ex-husband. Witness 2 stated that during the fact-finding, several staff, indicated that the Mammogram Navigator, not RMO 2, was the person talking about Complainant and encouraging staff to “Google” Complainant. Witness 2 stated she was not aware of Complainant’s concerns mentioned in her EEO complaint until May 9, 2019. On September 11, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of religion (Fundamentalist Church of Jesus Christ of Latter Day Saints)2 and sex (female) when: 1. From February 28, 2019, through April 11, 2019, RMO 1, Women’s Unit Nurse Manager, chastised and embarrassed Complainant for asking questions about the difference in the roles of LPNs and RNs; yelled at her to quit asking questions during training; issued her a probationary warning letter, and refused to address her questions about the warning letter. 2. From March 1, 2019, through May 6, 2019, RMO2, Assistant Unit Nurse Manager, refused to send Complainant alerts and prevented her from gaining more experience; instructed her to stop speaking to Witness 1, Nurse Practitioner; stated, “the only labor [Complainant] has ever done is helping her sister-wives give birth;” and spread rumors and gossip by encouraging co-workers to “Google” her ex-husband. 3. Around March 4, 2019, RMO1, denied Complainant’s request to switch her tour of duty to four 10-hour days and denied her leave request to attend her Nurse Practitioner clinicals. 4. In April 2019, no action was taken when Complainant became aware coworkers were discussing and watching a video about her former marriage and making offensive comments about her children being polygamists. 5. On April 26, 2019, Complainant resigned due to the “on-going” harassment. The Agency issued a Notice of Partial Acceptance accepting claim 5 as a timely raised discrete event and accepting all claims as part of a hostile work environment claim. However, the Agency dismissed claim 3 as an untimely raised discrete event. 2 In her affidavit, Complainant identified her religion as non-denominational-Christian. She noted that she was previously a Fundamentalist Mormon, a seventh wife to her ex-husband from 1991 to 2011. 2021000054 4 At the conclusion of the investigation on the accepted issues, 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 Agency noted Complainant satisfied the first element of her hostile work environment claim by showing that she is a member of a protected class with regard to her religion and sex. Regarding the second element, the Agency stated the majority of her allegations consist of job- related events which Complainant found objectionable. The Agency found that the allegations of work-related conduct were not harassing in nature. However, the Agency noted that Complainant also alleged that RMO 2, and other coworkers, gossiped about her religious practices and those of her family. The Agency assumed that the comments allegedly made by RMO 2, and the other employees, regarding Complainant’s past religious practices were harassing in nature due to her religion. Regarding the third element, the Agency noted that Complainant asserted she was not present when RMO 2 allegedly made the sister wives comment or told staff to “Google” Complainant’s husband. Complainant stated that she was told in May 2019, by the Mammogram Navigator, that RMO 2 made these statements in February 2019. Complainant also stated she was told by the Mammogram Navigator and Witness 3 that coworkers were “Googling” her. Complainant stated that she felt that managers started treating her differently around the same time. The Agency deemed the alleged comments made by RMO 2 and other employees were based on her past religious practices. However, the Agency determined that even if the conduct occurred as alleged and was based on Complainant’s protected class, it did not constitute unlawful harassment, as the events were not sufficiently severe or pervasive to constitute harassment. The Agency noted that Complainant contended she was informed by coworkers that other employees were “Googling” her and her past relationship/marriage and gossiping about her. The Agency pointed out that Complainant herself was never confronted with any negative or harassing comments or conduct from any employees, and the information presented does not establish that the “Googling” of Complainant’s past relationship was harassing in nature. The Agency determined Complainant failed to establish a prima facie case of harassment based on religion or sex. Regarding her constructive discharge claim, the Agency noted Complainant claimed management did not train her appropriately and mistreated her. She also asserted that managers were talking negatively about her past and there was a lot of gossip in the office. Complainant maintained that her coworkers gossiped about her past and her children’s past, which included polygamy, and that it made her work life uncomfortable. She claimed management was aware of this and participated in spreading the gossip. 2021000054 5 The Agency determined that even assuming Complainant’s allegations were true, these actions would not rise to the level of creating an intolerable work environment. Further, the Agency found management articulated legitimate, nondiscriminatory reason for its actions and the record did not establish management’s reasons were pretext for discrimination. The Agency found the evidence did not establish that Complainant was subject to any adverse employment actions, or subject to any discriminatory harassment because of her religion or sex or that management intentionally discriminated against Complainant in an effort to force her to resign. ANALYSIS AND FINDINGS 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”). 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 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five days of the effective date of the action. Regarding claim 3, the record discloses that the alleged discriminatory event occurred in March 2019, but Complainant did not initiate contact with an EEO Counselor until May 24, 2019, which is beyond the applicable limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Thus, we find claim 3 was properly dismissed as an untimely raised discrete incident. However, claim 3 will be considered as part of Complainant’s harassment claim. Complainant has alleged that she was subjected to a hostile work environment which culminated in her forced retirement or constructive discharge. It is well-settled that harassment based on an individual’s statutorily protected bases is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to his membership in those classes or his prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2021000054 6 Regarding the incidents in claim 1 and the actions in claim 2 concerning the number of alerts she received and the instructions not to speak to Witness 1, the record reveals these matters were regular business decisions related to Complainant’s assignments, training, and performance, which, absent discriminatory animus, will not be second-guessed by the Commission. Agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Complainant v. Soc. Sec. Admin, EEOC Request No. 05960403 (Dec. 6, 1996). Further, regarding the incidents in claim 3, the Agency noted that the changes in schedule were denied based on the needs of the clinic. Complainant failed to show that any similarly situated individuals were treated differently with regard to schedule changes. Moreover, we find Complainant failed to show that any of the Agency’s actions were motivated by either of her protected bases. Specifically, we note that with regard to the basis of sex, in her affidavit Complainant was asked why she believed the Agency’s actions were based on her sex and in response to every claim listed, she replied, “N/A.” We further find that Complainant failed to show that any gossip circulated about her past religious practices created a hostile work environment. We note that none of the comments were actually said to Complainant and she did not even learn of the statement alleged in claim 2 until after she submitted her notice of resignation. Although it is not clear, we will assume the gossip in claim 4 was made prior to her notice of resignation. Though Complainant found the gossip that was allegedly circulated about her offensive, the gossip did not physically threaten or humiliate Complainant, alter Complainant’s employment status, or unreasonably interfere with Complainant’s work performance. Moreover, we note the record reveals that Complainant herself actually told four coworkers herself about her polygamist background. Upon review, we find Complainant’s work environment at the Agency cannot reasonably be perceived as hostile or abusive. As such, we find that Complainant has not established that the Agency subjected her to a hostile work environment based on her religion or sex. Next, we address Complainant’s claim of constructive discharge. The central question in a constructive discharge claim is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Complainant v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Complainant v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As noted above, we find that the Agency had legitimate, nondiscriminatory reasons for its actions and Complainant has not established that a reasonable person in her position would have found these working conditions intolerable. In addition, the record is devoid of evidence that any responsible management officials were motivated by discriminatory animus with respect to the working conditions at issue. 2021000054 7 Furthermore, we note that when Complainant submitted her letter of resignation on April 26, 2019, she failed to mention any intolerable working conditions. Upon review, we find that Complainant failed to prove her constructive discharge claim as alleged. CONCLUSION Accordingly, the Agency’s final decision is AFFIRMED. 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. 2021000054 8 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 November 29, 2021 Date