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

Equal Employment Opportunity Commission

Apr 18, 2022

Appeal No. 2021004772 (E.E.O.C. Apr. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thersa E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004772 Agency No. 200I-0508-2018105692 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 27, 2021 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, VN 2, in the Ambulatory Surgery (AS)/Post-Anesthesia Care Unit (PACU) unit at the Agency’s Atlanta Medical Center in Decatur, Georgia. Complainant primarily worked in AS (also known as Pre-Op) but performed duties as needed in the PACU. Her immediate supervisor was the Acting Nurse Manager (S1) and her second-level supervisor (S2) was the Associate Nurse Executive. Prior to the events in this complaint, a fact-finding investigation concluded Complainant had been subjected to harassment, deceit, abuse of power, and staff manipulation by a nurse manager (NM). 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. 2021004772 2 Among several recommendations, it was advised that NM should not be allowed to manage people in any department within the Agency. S2 stated NM left the unit in October 2017. On April 10 and 12, 2018, Complainant requested leave in the Agency’s time and attendance system from 1:00 p.m. to 5:00 p.m. Complainant wanted to leave the facility at 12:30 p.m. for her 30-minute lunch period. S1 informed Complainant that she should indicate in the system the time she left the facility, 12:30 p.m., and the system would adjust her hours for her lunch period. Complainant input the leave in the system as instructed. Complainant was charged leave for the two 30-minute lunch breaks and she informed her supervisors of the mistake. Management officials subsequently agreed to return the leave used for the two 30-minute lunch breaks. Complainant’s time and attendance records were eventually corrected, and her leave returned, but she was instructed to take her lunch while she was working going forward. Complainant was involved in an incident with an Anesthesia Technician (AT) and reported it to AT’s supervisor, the union, and S2. Complainant refused to meet with the officials regarding the incident stating that she did not want to work in the same area as AT. On June 6, 2018, Complainant sent S2 and others an email stating that she was told by the AS Unit Charge Nurse, that after the first cases go back to the Operating Room from the PACU area, Complainant was not allowed to work in PACU because of a recent incident with AT. S2 responded that she had a conversation with the Charge Nurse about staff rotating to PACU when PACU was short staffed, but that she did not think that they mentioned Complainant by name. S1 informed the Operating Room Director that there were no limitations on Complainant working in the PACU. On June 7, 2018, Complainant informed S2 that the matter appeared to be a misunderstanding. On June 26, 2018, S2 sent an email to numerous members of her staff, including Complainant, regarding suction set-ups in the PACU because there were complaints that PACU staff did not have suction set-ups ready when post-operation patients arrived in the PACU. Staff was informed it was mandatory that suction be set up and fully functional when the patient arrived and warned that disciplinary action would be taken against staff failing to do their jobs. Complainant emailed S2, asking among other things, why she was the only Pre-Op (AS) staff member who received S2’s email. Complainant also inquired about NM’s involvement in the AS unit, since the email was also sent to NM, because she thought NM was only temporarily signing off on time and had no management within the unit. S2 replied stating she only included Pre-Op who usually floated to the PACU, and that it was time for her to meet with Complainant and a union representative to discuss some things she had noticed in the past month. In response to Complainant’s question about NM, S2 stated that she included NM in the email because she covered for S1 for a day. On August 10, 2018, Complainant requested annual leave from 9:30 a.m. - 2:00 p.m. S1 and Complainant’s new supervisor (S1-2) denied her request. Complainant averred S1 wanted her to request 4.5 hours of annual leave time, by manually taking out the 30 minutes for lunch, instead of 4 hours of annual leave time. S1 stated that she denied the request because Complainant was not authorized to input that she took lunch within the facility when in fact she left the facility. 2021004772 3 She asked Complainant to input the time that she left the facility, not 30 minutes after she left the facility. Complainant ultimately did not take leave on that day. On September 16, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment in reprisal for prior protected EEO activity as evidenced by the following events: 1. On April 10 and 12, 2018, S1 charged Complainant 30 minutes of leave to cover her lunch break; 2. On May 8, 2018, S2 told Complainant that she would have to work an additional 30 minutes to cover her lunch when she was taking a half day of leave; 3. On June 6, 2018, S2 restricted Complainant from working in PACU after she reported an incident of harassment on May 24, 2018; 4. On June 26, 2018, S2 sent Complainant an intimidating email and included NM, AS/PACU on the email; 5. On June 26, 2018, when Complainant asked S2 about NM’s possible return to the unit, S2 attempted to intimidate Complainant by stating “think it’s time for me (S2), the Union Rep and her (Complainant), to sit down and discuss some things that she has noticed in the past couple of months;” 6. In August 2018, NM was reassigned to Complainant’s unit although Complainant had filed a harassment claim against NM; and 7. On August 10, 2018, Complainant was denied leave. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that the Agency articulated legitimate, non-retaliatory reasons for its actions. Specifically, regarding claims (1), (2), and (7), management testified the contested leave time was due to standard Agency leave procedures. Management explained that lunch breaks must not be taken away from the facility due to policy and liability issues and this requirement was discussed with and understood by Complainant and other employees. Payroll officials concurred that employees should not be allowed to manipulate the system. With respect to the leave request in claim (7), management correctly denied it as it was requested incorrectly. 2021004772 4 Regarding claim (3), following a reported incident between Complainant and AT, both management and Complainant discussed ways to keep AT from being assigned areas overlapping with Complainant. Management testified the incident at hand occurred when the PACU was short staffed and staff was being rotated. Management asserted there was no restriction or singling out of Complainant. With respect to claims (4) and (5), Complainant alleged she was the only individual from Pre-Op to receive the email, and NM was added to the email for intimidation. Management explained that this email was sent to all employees working PACU after management was informed employees were not properly prepared to receive patients. Management explained that NM was included on the email because at times she was tasked with filling timekeeper duties and covered for S1 for a day, and not for purposes of intimidating Complainant. Additionally, regarding the email in question in claim (5), management testified that the email was sent to discuss Complainant not following chain of command, and NM was added to the original email as she was covering for S1 that day. Finally, regarding claim (6), S2 affirmed that NM was not reassigned to Complainant’s unit, she was unaware of Complainant’s charge against NM, and this was not discussed with management, Human Resources, or Complainant. S2 noted that NM was working in a community case position and not within Complainant’s unit. The AJ concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to reprisal or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal Complainant’s estate, through its representative, argues the AJ erroneously issued summary judgment because there are numerous genuinely disputed material facts and the credibility of witnesses needs to be evaluated. Additionally, summary judgment was not appropriate because the AJ erred when it applied the wrong legal standard for retaliatory harassment claims. Complainant’s estate requests the Commission reverse the AJ’s decision, and remand the complaint for a hearing. 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). 2021004772 5 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). 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 retaliatory animus. Here, however, Complainant has failed to establish such a dispute. The Commission notes the AJ relied on the legal standard for hostile work environment claims based on other bases, such a race or sex, not retaliation. However, the threshold for establishing retaliatory harassment is different than for discriminatory hostile work environment. For Complainant to prevail on her allegation of retaliation, she must show that she (1) engaged in protected activity; (2) she was subjected to a materially adverse action taken by her employer; and, (3) there is a causal connection between the protected conduct and the adverse action; and (4) there is a basis for imputing liability to the Agency. See EEOC Enforcement Guidance on Retaliation and Related Issues (Retaliation Guidance), EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); Retaliation Guidance. Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. In this case, we find that Complainant failed to show that the Agency’s actions were based on retaliatory animus. Rather, as discussed more fully above, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence demonstrating that the Agency's explanation for its actions was pretext for reprisal. Accordingly, we find that Complainant has not shown that she was subjected to reprisal or a hostile work environment as alleged. 2021004772 6 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to reprisal or a retaliatory hostile work environment as alleged. 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 order adopting the AJ's decision. 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. 2021004772 7 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 18, 2022 Date