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

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2021002567 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilbur R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002567 Hearing No. 550-2018-00107X Agency No. 200P-0640-2017103421 DECISION On March 25, 2021, 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 February 16, 2021 final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked for the Agency as a Nursing Assistant in Palo Alto, California. On July 10, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), color (Black), age (64) and reprisal for prior protected EEO activity 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. 2021002567 2 1. On June 8, 2017, the Agency's Nurse Manager, (Manager) gave Complainant a written letter of counseling for an incident which occurred on April 24, 2017; Complainant contends that another nurse (Employee) wrongfully confronted him; 2. On July 28, 2017, the Agency's Acting Chief, Nursing Long Term and Extended Care (Chief Nurse), detailed Complainant to the Menlo Park Nursing Long Term and Extended Care Service; 3. On July 28, 2017, the Chief Nurse served Complainant a Direct Order of Restricted Communication that prohibited him from communicating with Manager; and 4. From April 24, 2017 and ongoing, Complainant was subjected to incidents of harassment including but not limited to, being wrongfully confronted by a co- worker in front of a patient, threats of reprisal from Manager, and lies from Manager that he heard Complainant was going to the Union. The Agency accepted complaint for investigation which developed evidence on the claims summarized below. The record indicates that the Agency considered claim 4 as background evidence in support of claims 1, 2 and 3. Claim 1 On April 24, 2017, Complainant and another nurse (Nurse) employed by the Agency engaged in a verbal altercation in the presence of a patient regarding whether the patient was supposed to go to an examination that morning. The record reflects that the patient had a history or refusing to get out of his bed on some days, and had previously informed the aide assigned to care for him that he would not be leaving his bed that day. The record further reflects that Complainant was assigned to transport the patient to his dentist appointment that morning. When Nurse learned that the patient had missed his dental employment she went to the patient’s room where she found Complainant. Nurse asked Complainant if he was aware of his daily assignment. According to the record, Complainant became defensive and raised his voice. Complainant alleges that Nurse yelled at him for failing to transport the patient and reminded him to check his daily assignment. Thereafter, Manager interviewed both Complainant and Nurse regarding the April 24, 2017 incident. Manager found both parties to be at fault. Specifically, Manager determined that Nurse approached Complainant without having accurate information about the patient’s refusal to get out of bed that day, and the Manager determined that Complainant’s response was aggressive and disrespectful. Manager recommended issuing reprimands to both Complainant and Nurse for their behavior. However, after consulting with Human Resources, Manager issued Complainant and Nurse letters of counseling on June 9, 2017 in response to their conduct on April 24, 2017. 2021002567 3 Claims 2 and 3 The record further indicates that on June 2, 2017, an aide called Nurse into Patient C’s room to check the patient’s wound. Nurse advised the aide that the wound was caused by moisture and that it would heal in a week with proper care. According to the record, as Nurse was leaving the patient’s room, Complainant was observed touching and assessing the wound himself. Thereafter, a wound-care nurse checked Patient C’s wound and determined that it was related to moisture. However, according to the record, Complainant raised his voice, insisted that the wound was a pressure sore, and argued with the Wound Care Nurse about the cause of the patient’s wound. On June 26, 2017, an aide was helping Patient C with his activities when Complainant entered Patient C’s room and demanded that the aide turn over Patient C, so that Complainant could see the patient’s wound. Complainant complained that it was worse than the week before and yelled, “I’m tired of these mother fucker lying bastards!” According to the record, as Complainant angrily left Patient C’s room, he ran into the patient’s Registered Nurse Practitioner, (RNP) at the nurse’s station. The RNP advised Complainant that Patient C’s wound was improving. Complainant disagreed with the RNP. According to the Agency, although Complainant was not assigned to care for Patient C, nor was he wound assessments within the scope of his practice, he continually disrupted his care and continued to disagree with RNP’s assessments. In addition, Complainant was observed speaking with Patient C’s spouse and informing her that the wound was worsening. On June 29, 2017, Complainant entered the employee break room and demanded to know which of the four aides in the room were taking care of Patient C. Complainant began to interrogate one of the aides about Patient C’s care. Complainant angrily leaned over a table and challenged the aide to look into his eyes and tell him that Patient C’s wound was worse. According to the Agency, Complainant also slammed a garbage can and coffee creamer. The nurse’s aide was visibly upset and began crying because of Complainant's conduct. The nurse’s aide reported Complainant’s conduct to the Chief Nurse who also gathered reports from the other nurse’s aides present. The nurse’s aides indicated that they felt afraid of Complainant. Following the June 29, 2017 incident, on July 28, 2017, Complainant was detailed to another location while the Agency conducted a fact-finding investigation into the events related to Patient C. In addition, while the Agency investigated the matter, Complainant was restricted from speaking to Manager and from having any communication with the staff in the building. A Restricted Communication Letter was issued on July 28, 2017 to both Complainant and to Manager while the investigation was pending. After the investigation into his complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the assigned AJ granted the Agency’s July 15, 2020 motion for a decision without a hearing and issued a decision by summary judgment on February 4, 2021. 2021002567 4 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”).We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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 the instant case, we find that the AJ's decision to issue a decision without a hearing was appropriate, Complainant was given notice of the Agency's Motion for a Decision without a Hearing, and the AJ viewed the evidence in the light most favorable to Complainant. 2021002567 5 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. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case 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 Dep't of Cmty. 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 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990): Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Even assuming arguendo that Complainant established a prima-facie case of discrimination on any alleged basis, the record shows that the Agency articulated legitimate, non-discriminatory reasons for the conduct at issue herein, as discussed in detail above. Complainant has not proved, by a preponderance of the evidence, that the Agency's articulated legitimate, non-discriminatory reasons for these incidents were pretext designed to mask unlawful discrimination. 2021002567 6 Harassment Complainant also alleges that he was discriminatorily harassed and subjected to a hostile work environment when she was confronted by a co-worker in front of a patient, threatened with reprisal and lied about. Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (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 Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). In other words, to prove his harassment claim, Complainant must establish that he 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, his sex, race, color or age. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. With regard to the events comprising Complainant's harassment claim, we find that Complainant fails to establish that he was discriminatorily harassed. In sum, beyond his bare assertions, there is simply no evidence that Complainant's sex, race, color or age played any role whatsoever in the events at issue. A case of harassment 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 Based on a thorough review of the record and the contentions on appeal, we find that the AJ properly issued a decision without a hearing finding no discrimination. The Agency's final order implementing that decision is AFFIRMED. 2021002567 7 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). 2021002567 8 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 June 8, 2021 Date