0120152023
02-12-2016
Rosanna B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rosanna B.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152023
Agency No. 2003-0580-2013104423
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 15, 2015 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.
BACKGROUND
During the period at issue, Complainant worked for AB Staffing Solutions serving as a Nurse Aide at the Agency's Michael E. DeBakey Veterans Affairs Medical Center (VAMC) in Houston, Texas.
On October 3, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of sex (female) and national origin (African-American) when:
1. in March 2013, management failed to act when she informed management officials that two Nigerian nurses told Complainant that she would be stealing time if she left early from work; however, nothing was done when other Nigerian employees did the same;
2. in April 2013, a Registered Nurse 1 accused her of leaving work before her tour of duty ended;
3. on a continuous basis beginning March 2013 through June 2013, the male nurses were confrontational towards her and other female nurses;
4. beginning June 12, 2013, Registered Nurse 2 corrected her about "everything;"
5. on July 3, 2013, Registered Nurse 2 raised his voice in a disrespectful manner at her and scolded her as if she were a child because Complainant responded by saying "yes" when he called for her; and
6. on September 2, 2013, her employment relationship between the VAMC and AB Staffing Solutions was terminated.2
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On April 15, 2015, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of sex and national origin discrimination. The Agency further found that assuming arguendo Complainant established a prima face case of sex and national origin discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on sex and national origin. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Department of Community 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claims 1 and 2, Complainant stated that on an unspecified date in March 2013, she planned to leave work early from her 3:00 p.m. -midnight tour of duty. However, two Registered Nurses pulled her aside and told her that if she left early she would be stealing time and could be terminated. Complainant stated that she did not leave early that day. Complainant stated that sometime in April 2013, a Registered Nurse did not accuse her for leaving work early. However, Complainant identified Registered Nurse 2 as one who left work early two evenings sometime in July 2013. Complainant also identified another African-American and Indian female Registered Nurses who left work early on three days while under the supervision of the Registered Nurse 2. Further, Complainant acknowledged she never reported the incidents to the Registered Nurse 2 or the third Registered Nurse.
The Nurse Manager, also Complainant's supervisor, stated that she had no knowledge that the two Registered Nurses told Complainant that she would be stealing time if she left work early. The supervisor further stated that she had no knowledge of other employees leaving work early.
Regarding claims 3, 4 and 5, the supervisor acknowledged that Complainant informed her that the Registered Nurse 2 was confrontational toward female nurses. The supervisor stated, however, she did not receive any reports from other female nurses concerning Registered Nurse 2.
With respect to Complainant's allegation that the Registered Nurse 2 over rode the charge nurse's instructions, the supervisor stated "although the charge nurse is in charge, the assignments are [broken] up into teams, which is led by an R.N. That may not be the charge nurse over the floor, but just a team leader for their team. And that R.N. can delegate other tasks, if it's within their scope to do. And I tried to explain that, even though the charge nurse may have asked to get a bed ready, but if we have a patient that - - is sick and needs vital signs, your team leader or the nurse that you were assigned to work with may ask you to get vitals because that's needed right then and there, and that's what you do. And then you can go back to making a bed or passing water or something that is non-urgent, that the charge nurse may have assigned for you to do. Because our patient track will be changed, sometimes our assignments have to change, so that we are assisting the patient needs."
The Nurse Manager stated that the Registered Nurse 2 explained to her about an incident that occurred on July 3, 2013. Specifically, the supervisor stated that Registered Nurse 2 stated that when he called out Complainant's name to ask her to enter a patient's room and she responded saying "yes." The Registered Nurse 2 "continued to try to call [Complainant] out of --- the patient's room, to discuss an assignment, and her response continued to be, 'yes.' And then - - after coming out of the room, they began to discuss the nature in which she was called and the nature in which he responded and she responded, both reporting that one was rude to the other, and both reported that the behavior was in appropriate or unwelcomed. His response was that he thought she was being sarcastic and would not come out of the room to discuss the assignment. And her response was that he was calling her repeatedly, and she responded, 'yes,' and he didn't like her response."
The supervisor stated that she asked Complainant to write a statement concerning the July 3, 2013 incident and that she would look into the matter. The supervisor stated that after she received statements from Complainant and Registered Nurse 2, she discussed the issue with her supervisor. The supervisor stated "I was told to have a meeting and discuss the expectations of the unit as far as assignments and the charge nurse role and professional behavior in front of patients and in the hall, and that's what I did." The supervisor stated that during the meeting, she, Complainant, the Registered Nurse 2 and the charge nurse all discussed "how it could have been handled differently, that there is no tolerance of, you know, arguing in the presence of the patient, if there is an issue, it needed to be resolved away from patient care areas - - and that (undiscernible), and that continued problems could lead to possibly disciplinary action."
Regarding claim 6, the supervisor stated that Complainant was terminated for failure to follow instructions. Specifically, the supervisor stated that Complainant refused to follow assignments "given to her by charge nurses on the unit."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
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 her protected bases -- in this case, sex and national origin. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of her sex and national origin.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
February 12, 2016
__________________
Date
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.
2 The record reflects that on December 30, 2013, the Agency issued a final decision dismissing the instant formal complaint for failure to state a claim. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. [Complainant] v. Department of Veterans Affairs, EEOC Appeal No. 0120141104 (August 13, 2014). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal
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