0120081507
09-25-2009
Susan K. Sink, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Susan K. Sink,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081507
Agency No. 200H-0523-2006102893
DECISION
Complainant appeals to the Commission from the agency's decision
dated January 14, 2008, finding no discrimination. In her complaint,
complainant, a Social Worker in the Mental Health Care Line at the
Brockton Campus of the agency's Boston Health Care System, alleged
discrimination as stated below.
Claim A:
Whether management subjected complainant to harassment and a hostile work
environment based on disability (hypertension and migraine headaches)
when:
1. On or about April 12, 2005, a Psychologist (Dr. A), Associate Director
of Outpatient Mental Health and administrative overseer of complainant,
sent her an email discussing her failure to attend a team meeting;
2. On or about April 26, 2005, Dr. A sent her an email discussing her
failure to attend another team meeting;
3. On or about April 26, 2006, Dr. A motioned to her to stop speaking
during a team meeting;
4. On or about September 30, 2005, Clinical Psychologist (Dr. B),
Director of the clinic, slammed both the secretary's office door and
his own office door two times while she met with a patient;
5. On or about October 4, 2005, Dr. A issued her a written counseling
and discussed her failure to speak during team meetings;
6. On or about October 11, 2005, Dr. B warned her during a team meeting
that she could lose her license for suggesting to a patient that they
find another psychiatrist;
7. On or about October 13, 2005, she found a copy of her patient notes
on the printer and suspected that Dr. B had printed them out and left
them there;
8. On or about November 5, 2005, Dr. A reassigned one of her patients,
told her to cancel the follow-up appointment, and denied her a termination
session with the patient;
9. On or about November 18, 2005, Dr. A would not accept her offer to
see the reassigned patient and did not see him herself until four months
later;
10. On or about March 8, 2006, management brought to her attention her
failure to follow up with a veteran while Dr. A and Dr. B continued to
ignore her requests to follow-up with the veteran who could not receive
treatment at the PTSD Outpatient Clinic as a non-combat veteran;
11. On or about March 11, 2006, management invited one of her patients
to a staff meeting to discuss patient care issues after she presented
the patient's request to terminate his VA psychiatrist, which management
informed her constituted "splitting";
12. On or about April 10, 2006, management again informed her that her
conduct constituted "splitting" when in a staff meeting she questioned
the particular medication given to a patient;
13. On or about April 10, 2006, Dr. A commented to a staff psychologist
that complainant's patient had been "flirty" with complainant;
14. On or about June 8, 2006, Dr. B "maligned" her to several of
her patients who had shown up for a group meeting she had previously
cancelled;
15. On or about June 13, 200G, Dr. B informed her that she had not
completed an assessment that she claimed she had already completed;
16. On or about June 15, 2006, Dr. B "patrolled the halls" waiting for
her and went to the administration office to complain when one of her
patients showed up for an appointment she had previously rescheduled;
17. On or about June 20, 2006, management "accused" her of not following
up with a veteran, not completing an assessment, and sending the veteran
to the Jamaica Plains campus instead;
18. On or about June 28, 2006, Dr. B notified her that she had failed
to meet the "business rules" with a veteran whom she had agreed to see
"out of turn" in order to accommodate the veteran's work schedule;
19. On or about June 30, 2006, her supervisor issued her a counseling
letter for abuse of sick leave;
20. On or about July 12, 2006, the supervisor informed her that management
scrutinized everything she did;
21. On or about July 13, 2006, the supervisor informed her of a complaint
by a Psychiatrist (Dr. C) about a medication issue;
22. On or about July 14, 2006, Dr. B told the program assistant not to
enter data from complainant's encounters into the computer;
23. On or about July 17, 2006, Dr A questioned whether she had followed
up with a particular patient;
24. On or about July 20, 2006, Dr. B interrupted the conversation he
overheard her having with another clinician by interjecting that group
therapy sessions should never be closed to veterans;
25. On or about August 1, 2006, the supervisor informed her that Dr. C
had lodged a complaint about her discussing patient medications;
26. On or about August 3, 2006, shortly after she and management
participated In alternative dispute resolution in the instant complaint,
Dr. B told the supervisor that she had improved on her assessments;
27. On or about August 7, 2006, she found her response to Dr. A's written
counseling lying open in a folder in the assistant's office;
28. On or about September 19, 2006, Dr. B "complained" that she had
knocked on a medical resident's door to introduce a veteran patient,
thereby pressuring the resident to schedule an appointment with the
patient; and
29. On or about September 21, 2006, Dr. B interrupted her while she
assisted a blind veteran.
Claim B:
Whether management subjected complainant to harassment and a hostile work
environment based on reprisal for initiating the instant EEO complaint
when:
1. On or about September 11, 2006, Dr. C "disciplined" her in a patient's
record;
2. On or about October 24, 2006, Dr. C forwarded to the Acting Chief of
Social Work Service an email containing an answer from the complaint to
a question;
3. On or about November 15, 2006, Dr. A and Dr. C brought up two of her
patients during a team meeting;
4. On or about November 21, 2006, Dr. A and Dr. B questioned her about
one of her patients during a team meeting;
5. On or about November 28, 2006, Dr. A and Dr. B questioned her about
one of her patients during a team meeting;
6. On or about December 5, 2006, Dr. A and Dr. B questioned her about
one of her patients in a team meeting;
7. On or about December 6, 2006, her supervisor told her, while issuing
her performance appraisal (which she refused to sign, had been due
in September and which she never received a copy of), that Dr. A and
Dr. B wanted her to note complainant's inability to participate in team
building;
8. On or about December 12, 2006, Dr. B inquired about her scheduling
an appointment with a veteran; and
9. On or about December 20, 2006, she discovered that Dr. B had informed
her supervisor on November 21, 2006, that she had failed to do a risk
assessment on a veteran patient when doing so had not been necessary.
After completion of the investigation of the complaint, complainant
requested a hearing but later withdrew the request. The agency
then issued its decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which complainant failed to
rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons for
the issuance of the removal notice. The agency stated that the alleged
incidents did not constitute harassment but rather involved the usual
coordination of joint provision of direct patient care among clinicians
in the clinic, the normal, everyday supervision of complainant in the
performance of her duties and legitimate responses to several ongoing
performance and conduct problems exhibited by complainant, some of which
had been brought to management's attention by the patients themselves.
The agency also indicated that management denied accusing or mistreating
complainant as she alleged but rather the purported behavior resulted
from her habit of interrupting people, her outspoken nature, and her
ongoing complaints about the workload distribution.
Specifically, management stated that complainant was issued a written
counseling, described in clam A(5), based on a complaint from a patient
not because she did not participate in meetings. Complainant's supervisor
indicated that complainant was issued a counseling letter, described in
claim A(19), due to her abuse of sick leave. With regard to claim B(10),
Dr. C stated that he routinely spent time counseling residents and staff
not to take their conflicts into the medical records. He stated that he
did not know why complainant would interpret his note into the file as a
"threat." Dr. C stated that this was "routine communication" that he
would use with the patients for all referrals. He indicated that he was
"simply documenting" that they had discussed a lapse in treatment and
that he was concerned about continuity. He stated that the notes were
intended for follow up and to make sure that "things don't get dropped."
Additionally, the agency noted that complainant subsequently requested
and granted a reassignment out of the PTSD Clinic in April 2007, and, as
a result, she was, subsequently, no longer supervised by her supervisor,
Dr. A, Dr. B, and Dr. C, described in the instant complaint.
The Commission does not address in this decision whether complainant
is a qualified individual with a disability. Furthermore, we note
that complainant has not claimed that she was denied a reasonable
accommodation. Upon review, the Commission finds that complainant failed
to show that the alleged harassment was sufficiently severe or pervasive
to affect a term and condition of her employment.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
9/25/09
__________________
Date
2
0120081507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013