Tess W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 4, 2018

0120172631 (E.E.O.C. Dec. 4, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tess W.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120172631

Agency No. 2004-0558-2017100153

DECISION

On July 28, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 13, 2017 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Registered Nurse at the Agency’s
Ambulatory Care Services, Women’s Health Clinic, Durham VA Medical Center in Durham,
North Carolina.2

On November 14, 2016, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against her based on her race (African-American) and disability 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.

2 On September 29, 2016, Complainant resigned from Agency employment.
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1. when Agency management subjected her to disparate treatment by taking the
following actions:

a. charging her with Absent Without Official Leave (AWOL) instead of
charging her Leave Without Pay (LWOP) from September 12, 2016 to
September 20, 2016; and

b. upon her return to work on September 26, 2016, the Nurse Manager changed
her duties, after Complainant had taken leave pursuant to the Family and
Medical Leave Act (FMLA); and

2. she was subjected to various incidents of harassment and a hostile work environment
on the bases of race and disability when on September 26, 2016, an unidentified co-
worker informed her that a named physician sent an email to the Nurse Manager
informing her that Complainant was not reliable and refused to have her serve as the
RN on her Primary Care Team; on September 26, 2016, a named RN repeatedly
called her out in the presence of co-workers and she indicated that when she asked the
RN to refrain from making such comments, she continued; and her co-workers made
derogatory comments about her and that she had an attitude.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision on July
13, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.3

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

Disparate Treatment: Claims 1.a. and 1.b.

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).

3 Complainant identified her disabilities as bilateral grade 4 Chondromalacia, anxiety,
depression, and Post Traumatic Stress Disorder (PTSD). For purposes of this analysis, we
assume, without so finding, that Complainant was a qualified individual with a disability.

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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).

Here, we find that responsible management witnesses articulated legitimate, non-discriminatory
reasons for the disputed actions.

Regarding claim 1.a., Complainant asserted that the Nurse Manager management charged her
with AWOL instead of charging her LWOP from September 12, 2016 to September 20, 2016.

The Nurse Manager (African-American, unknown disability) stated that during the relevant
period, she was Complainant’s supervisor. The supervisor stated that Complainant had been out
of work twice in less than a year for medical procedures. The supervisor noted that Complainant
had exhausted all of the 480 hours of FMLA “so she didn’t have anything. And when you go
out, according to VA Directives and HR, you don’t accumulate leave when you’re in a leave
without pay status for quite some time. So, she didn’t have any available annual leave or sick
leave.”

Further, the supervisor stated that she signed Complainant up for the Voluntary Leave Donation
Program which was approved twice “so if people want to donate leave to her, we would have
applied that time to her. No one submitted any leave for her, so I have to post it that way.”
Consequently, Complainant was charged with AWOL. The supervisor noted that Complainant
“never said, ‘well instead of having the AWOL, can I have leave without pay? Here are some
doctor’s notes.’ I never got that.”

Regarding claim 1.b., Complainant alleged that the supervisor changed her duties on September
26, 2016, after taking leave pursuant to FMLA. The supervisor stated that during the relevant
period Complainant had been out of work under FMLA to undergo a medical procedure. The
supervisor stated at that time, she had to change assignments “to basically make sure that all of
the clinic needs were covered. [Complainant’s] actual assignment was of an RN care manager.
So, as an RN care manager, your involvement is taking care of any patient complaints, concerns
and healthcare needs. You basically are trying to coordinate care. So, I never changed her
assignment.”
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After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s explanations for the disputed actions were a
pretext for discrimination or motivated by discriminatory animus.

Hostile Work Environment: Claim 2

With regard to Complainant’s hostile work environment claim, to establish a claim of hostile
environment harassment, Complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on her statutorily
protected class; (4) the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, 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, her race
or disability. Only if Complainant establishes both of those elements, hostility and motive, will
the question of Agency liability present itself. Here, Complainant simply has provided no
evidence to support her claim that her treatment was the result of her race or disability.

Complainant alleged that she was subjected to various incidents of harassment and a hostile work
environment when on September 26, 2016, an unidentified co-worker informed her that a named
physician sent an email to the supervisor informing her that Complainant was not reliable and
refused to have her serve as the RN on her Primary Care Team; on September 26, 2016, a named
RN would repeatedly call her out in the presence of co-workers; and her co-workers made
derogatory comments about her and that she had an attitude.

The supervisor stated that she was not aware of the physician’s email and that the only email she
received was back to August 2013 from the physician letting the supervisor know who was
covering her during her vacation time. The supervisor noted that the physician had not come to
her and “said, I will not work with X, Y, and Z. She will come to me if she has a concern about
the work that’s performed by a nurse; but she’s never said, I refuse to work with [Complainant],
no.”

Further, the supervisor stated it was interesting that Complainant used the August 26, 2016 date
concerning her claim because she resigned the same day “that I was meeting with her and her
union rep[resentative] because of her interpersonal conflicts and her rude behaviors and
instability in the Women’s Health Clinic.”

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The supervisor stated that during the relevant period, Complainant never mentioned to her that
she was being subjected to harassment. The supervisor further noted that Complainant “had
slammed doors in other nurses’ face, snatched papers, had made very rude comments to veterans
in clinic and actually told one veteran that she was gay and she was sleeping with one of the
other nurses.”

Complainant asserted further that on September 26, 2016, a named RN would repeatedly call her
out in the presence of co-workers and that when Complainant asked the RN to refrain from
making such comments, the RN continued to do so.

The RN Care Manager/Assistant Nurse Manager denied Complainant’s allegation that she
repeatedly called her out in the presence of co-workers. Specifically, the RN stated “I had limited
interactions with co-workers and staff, because my father unexpectedly died on Sunday
September 25, 2016…I was in the state of bereavement and minimal interactions with team
members.”

The supervisor stated that the RN mentioned that other employees were “concerned about
[Complainant’s] attitude and how she is not easy to communicate with; but [Complainant] was
allowed to speak and shared her feelings as well.”

Based on the evidence developed during the investigation, we conclude Complainant failed to
establish an essential element of her claim of harassment/hostile work environment – that her
race or disability played any role in the incidents she alleged as part of her claim.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

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.
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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.
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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

December 4, 2018
Date