0120162666
02-22-2018
Shelia D.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shelia D.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162666
Agency No. 200I05092015103311
DECISION
On August 15, 2016, 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 July 29, 2017, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nurse 2 Registered Nurse (Nurse 2) at the Agency's Charlie Norwood Healthcare System facility in August, Georgia.
On July 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), age (56), and reprisal for prior protected activity (prior reports of discrimination filed with the Inspector General) when:
1. from April 1, 2015, and onward, Complainant was not allowed to work as a Charge Nurse;
2. on July 9, 2015, Complainant was detailed to another work area; and
3. on February 8, 2016, Complainant was issued a three-day suspension.
Complainant later amended her complaint to add a claim that she was subjected to discriminatory harassment from February 20, 2015 through February 8, 2016.
At the conclusion of 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 EEOC 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.
This appeal followed.
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").
Disparate Treatment
A claim of disparate treatment based on indirect evidence 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 or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In claim (1), Complainant alleged that she was not allowed to work as a Charge Nurse. The Acting Nurse Manager (Manager, Black, born in 1953, unknown prior protected activity) and the Chief Nurse (Chief, White, born in 1960, engaged in prior protected activity) responded to Complainant's claim of discrimination. They stated in their affidavits that Complainant had been given the same opportunities as her coworkers to act as the Charge Nurse. However, they indicated that Complainant had many interpersonal issues with her coworkers which made her a less than ideal Charge Nurse and resulted in her not being assigned the task on a regular basis. In support of this claim, they provided many emails from other nurses complaining about confrontations with Complainant and calling her uncooperative and a bully.
Ultimately, the record shows that coworker complaints resulted in a fact-finding inquiry being conducted by management on Complainant's workplace conduct. Pending completion of the inquiry, Complainant was detailed to another unit (claim 2), away from the coworkers accusing her of harassment and improper conduct. As a result of the inquiry, Complainant was issued a three-day suspension as alleged in claim (3). The suspension was issued on the charges that Complainant had created a negative and disruptive environment in the unit; had left work early without obtaining permission; and had made changes to another employee's time sheet with no authority to do so.
Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for its action. As such, we turn to Complainant to show that the Agency reasons were pretext for discrimination. In response, Complainant asserted that she was not a liar and it was her coworker, the Charge Nurse (White, born in 1965, no prior protected activity), who was out of order. We find that Complainant's assertions alone is not enough to establish that the Agency's reasons were pretext for discrimination based on her race, age, and/or prior protected activity.
Harassment
In her harassment claim, in addition to the three incidents discussed above, Complainant basically alleged that she was routinely assigned more patients than assignments than her white coworkers, indicating she often had three patients while the other nurses had one or two, or were even allowed to "float" with no patient directly assigned to them. She also alleged that on June 30, 2015, the Nurse Manager accused her of being rude to a patient.
The Manager and the Chief responded that Complainant works in the Intensive Care Unit which involves patients who are in critical condition and require extensive care. The Chief noted that some of these patients may be more difficult to care for than others. She stated that a nurse might have one or two patients who need extensive monitoring while another nurse might have three easier patients to which they are assigned. Therefore, management indicated that it may appear that others have fewer patients, but those patients had more needs. As such, the Manager and Chief asserted that they believed work was distributed evenly based on the unique needs of each patient.
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 a protected basis - in this case, her race, age and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's race or age, or prior protected activity played any role whatsoever in the decisions not to use Complainant frequently as an acting Charge Nurse, to detail her to another area, or to issue her the three-day suspension. Moreover, the responsible management officials provided a legitimate, non-discriminatory explanation for how work was distributed among the nurses based on the need of the intensive care patients. In sum, Complainant failed to prove that her race, age or retaliatory animus played any role in the incidents she proffered as evidence of her harassment claim.
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 decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 22, 2018
__________________
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.
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