Tressa L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionOct 11, 20190120182837 (E.E.O.C. Oct. 11, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tressa L.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120182837 Hearing No. 510-2015-00321X Agency No. 20010573201100322 DECISION On July 24, 2018, 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 June 25, 2018, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Utilization Management Advisor, VN-2, at the Agency’s Medical Center facility in Gainesville, Florida. On November 20, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (back) when: 1. from June 5 to November 24, 2014, Complainant was been subjected to harassment; 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. 0120182837 2 2. on or about July 3, 2014, the Chief Nurse removed Complainant from the position of Acting Assistant Nurse Manager/Charge Nurse and replaced her with a less experienced employee that Complainant had to train; and 3. on November 24, 2014, Complainant was not referred for the position of Emergency Department Assistant Nurse Manager under vacancy announcement number GS-14-MSF-1124780. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 1, 2015 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on June 8, 2018. Specifically, the AJ found that management officials articulated legitimate, nondiscriminatory reasons for the alleged actions and that Complainant failed to establish that such articulated reasons were pretextual. The AJ further found that Complainant failed to establish that any of the Agency’s actions were based on Complainant’s disability. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. 0120182837 3 While Complainant has, in a very general sense, asserted that facts are in dispute, she 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 her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment. Disparate Treatment. Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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.2 See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, non-discriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory 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, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination. We next find that Agency officials articulated legitimate non-discriminatory reasons for their actions. With regard to the Chief Nurse allegedly removing Complainant from her position of Acting Assistant Nurse Manager/Charge Nurse and replacing her with a less experienced employee, the Chief Nurse averred that Complainant: Never held the position of acting assistant nurse manager. [Complainant] was a staff nurse in the emergency department [ED] and she was - - she served as a point of contact sometimes and as a lead because she helped the nurse manager fill out the daily schedule. 2 For purposes of this decision the Commission assumes without finding that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 0120182837 4 There was an employee that was selected to serve as the acting nurse manager on June 3rd. This employee had a broader base of ED knowledge, and experience, and experience in management; and she had previously worked in the VA ED for several years, and she had 25 years of ED experience and nurse manager experience. With regard to Complainant not being referred for the position of Emergency Department Assistant Nurse Manager, the Chief Nurse averred that “That is incorrect. [Complainant] was referred on the cert, her name was on the cert, along with seven or eight other applicants. [Complainant] was interviewed on 8/1/14.†The Chief Nurse further averred that, while Complainant: [D]id do quite well, she was up there in the top, but she wasn’t the top-most candidate, the highest scoring candidate. . . . [The selectee] had 25 years of ED experience and previous nurse manager experience. . . . [Complainant] did not have previous supervisory experience or nurse manager experience. And she did not have previous acute care experience, to the extent that the selectee did. She had intermittently worked in the ED as a supplemental staff person, which doesn't mean that you understand all of the emergency department acute care of patients, you are given a small team and of patients that are less acute. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to the Chief Nurse allegedly removing Complainant from her position of Acting Assistant Nurse Manager/Charge Nurse and replacing her with a less experienced employee, Complainant agreed with the Chief Nurse’s contention that Complainant had never been the acting assistant nurse manager, indicating that that portion of the claim was in error, and stating that the claim “should have read, ‘charge nurse’ instead of ‘acting assistant nurse manager’ because there were no acting assistant nurse managers in this facility at that time.†We next note that the primary care nurse (“PCNâ€, no claimed disability) who replaced Complainant as charge nurse was also the selectee for the position of Emergency Department Assistant Nurse Manager, and Complainant makes the same arguments against PCN replacing Complainant as charge nurse as she makes against PCN being selected for the Assistant Nurse Manager position, namely that PCN “had no training in the management of the emergency department at this VA medical center.†We note that where, as here, the alleged discriminatory action is non-selection, pretext may be found where the complainant's qualifications are demonstrably superior to those of the selectee. Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981). 0120182837 5 Otherwise, the Agency may choose among qualified candidates based on its discretion, provided that the decision is not based upon unlawful criteria. See Burdine, at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). Following a review of the qualifications of Complainant and PCN, we find that while the credentials of both candidates are impressive, Complainant has not shown that her qualifications are demonstrably superior to those of PCN. While Complainant had more experience working in the emergency department “at this VA medical center,†PCN had more overall experience working in emergency departments at other facilities. Management officials are entitled to decide that such experience in other facilities was as valid, or more valid, than Complainant’s experience at the facility in question. Complainant has therefore not shown that the Agency’s articulated reasons for replacing Complainant in her position of charge nurse with PCN, and subsequently selecting PCN for the position of Assistant Nurse Manager, were pretextual. Nor has Complainant otherwise shown discrimination occurred. Hostile Work Environment We note initially that, to the extent Complainant is alleging that she was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) any claim of hostile work environment may not include claims 2 & 3. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such incidents is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency with regard to those claims were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following incidents occurred: On June 5, 2014, the Chief Nurse advised Complainant to apply for other positions because the staff did not respect Complainant and viewed her as an extension of the previous Emergency Department Nurse Manager; on June 27, 2014, when Complainant asked the Primary Care Nurse Manager (“PCNMâ€) what she had done wrong not to be offered the Acting Nurse Manager position, PCNM replied that Complainant had done nothing wrong, but when Complainant asked PCNM whether Complainant needed to find another job, PCNM replied “yesâ€; July 1, 2014, even though the Chief Nurse had just shown Complainant a copy of her permanent work restrictions from the Department of Labor, the Chief Nurse asked Complainant for an updated copy; on July 2, 2014, the Chief Nurse instructed Complainant to train a Staff Nurse on preparing daily assignments; when Complainant 0120182837 6 returned from vacation on July 28, 2014, she discovered another nurse had moved into her office, and her personal property had been placed in a cabinet; from July 29, 2014, through August 8, 2014, Complainant was assigned to work as a Triage Nurse; on July 29, 2014, Complainant was moved to a desk in the corner without a telephone or a computer; and on August 11, 2014, the Patient Care Service Associate Director asked Complainant for a current copy of her work restrictions and informed Complainant that if she was selected for an assistant nurse manager position she would also be assigned a team of patients. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that 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 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing 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 disability. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself. Following a review of the record we find that Complainant has not shown that any of the alleged actions either involved or were based on her disability with the exception of the requests for updated medical restrictions, which appear to have been reasonable requests. Nor do we find such actions, whether considered individually or as a group, to be sufficiently severe and/or pervasive to alter the conditions of Complainant’s employment. We therefore find that Complainant has not proven discriminatory harassment occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination or harassment occurred. We therefore AFFIRM the final order. 0120182837 7 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. 0120182837 8 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 October 11, 2019 Date Copy with citationCopy as parenthetical citation