U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dionne W.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120182160
Agency No. 200H-0632-2017104236
DECISION
On June 9, 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
May 14, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision which found that Complainant did not demonstrate that she was
subjected to discrimination or harassment as alleged.
ISSUE PRESENTED
The issue presented is whether the Agency erred in finding that Complainant was not subjected to
discrimination and harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physician, GS-15, at
the Agency’s Northport VA Medical Center in Northport, New York. Her first-line supervisor
until November 1, 2017 was the GS-15, Acting Chief of Staff (male, Indian, EEO status unknown)
(Sl).
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.
01201821602
Her current first-line supervisor is the Acting Chief of Staff (female, race unknown, prior EEO
activity) (S1A). Her second-line supervisor is the Medical Center Director (male, Caucasian, prior
EEO activity) (S2).
Complainant testified that on July 28, 2017, S2 issued her a reprimand for failing to follow
procedures for walk-in clinic patients. Specifically, Complainant was covering walk-ins that day,
and yet she declined to treat a walk-in patient whose regular physician was out of the office. She
received a proposed one-day suspension which was mitigated to a reprimand by S2. On November
27, 2017, Complainant was issued a reprimand by S1A. This reprimand stemmed from an incident
on November 8, 2017, where Complainant showed union representatives a chart containing
Personally Identifiable Information (Pll), which was a violation of hospital policy, as well as the
Health Information Patient Privacy Act (HIPPA).
Complainant alleged that from February 14, 2017, onward, she was given a heavier workload than
her colleagues. She maintained that her supervisory chain failed to communicate with her
effectively, including not responding to her emails, and forgetting that they had verbally approved
leave. On September 15, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Asian), sex (female), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On July 28, 2017, she was issued an admonishment;
2. On November 27, 2017, she was issued an admonishment, and;
3. From February 14, 2017 - November 27, 2017, she was subjected to harassment.
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). In accordance with Complainant’s request,
the Agency issued a final decision (FAD) 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.
Specifically, the Agency’s FAD found that instant message conversations, produced during the
investigation showed that Complainant refused to see walk-in patients on that day, and told the
nursing staff not to schedule her for any walk-ins. Management explained that her actions were
inconsistent with facility policy on treating walk-in patients. The Agency maintained that although
Complainant believed this disciplinary action was excessive, she could not dispute that her actions
were inappropriate, nor could she provide any evidence that she was given the admonishment due
to her membership in a protected class.
Likewise, the FAD found that although Complainant maintained that she was unfairly disciplined
with respect to sharing unredacted PII information with a union representative, she did not dispute
that she shared this information. While Complainant argued that she was treated harshly because
of her gender, race, and EEO activity, the Agency maintained that her bare allegations were
insufficient to establish discrimination.
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The Agency found that:
[Complainant] has not provided any substantiating evidence that the claims in
events one and two were taken due to a discriminatory bias against her. Nor does a
review of the record in its entirety reflect any evidence to suggest discriminatory or
retaliatory animus by the named management officials. Therefore, [the Agency]
found that Complainant had failed to establish, by a preponderance of the evidence,
that she was subjected to unlawful discrimination as alleged in events one and two.
Further, the Agency’s FAD found that Complainant did not demonstrate that she was subjected to
harassment with respect to her claims regarding the two admonishments, her workload being
unfairly demanding, and supervisors failing to communicate with her effectively. The Agency
found that the incidents were not severe or pervasive enough to establish a hostile work
environment. The Agency concluded that the incidents cited by Complainant involved routine
managerial actions that fall outside of Title VII.
Finally, the Agency also examined Complainant’s claims with regard to whether the supervisors’
actions could likely deter Complainant from engaging in protected activity. The Agency found,
however, that Complainant did not demonstrate that the actions taken were based on her EEO
activity. The Agency asserted that Complainant’s second reprimand was issued due to her
unwarranted disclosure of PII. Complainant does not deny that this occurred. “Nor has
Complainant provided any evidence, other than her unsupported conjecture, that this reprimand
was issued in attempts to retaliate against her for participating in protected EEO activity.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that she was treated more harshly than
white employees. She asserts that she had the biggest case load in the office, and she had to deal
with more walk-in patients than any other physician. Complainant adamantly asserts that she did
not decline to treat a walk-in patient. Complainant indicated that in addition to her 10 scheduled
patients plus one that she had referred to another clinic, she was directed to see a third walk-in
patient. She was directed to do so even though other providers had fewer scheduled patients.
Complainant explains that the standard operating procedure indicated that the “covering provider
will cover the first scheduled patient who shows up … others will be distributed among providers
who have openings.” Additionally, she maintained that she advised the nurse that triaged the
patient to either refer him to the Emergency Room or tell him to come back the following day
since his regular provider would then be available. As such, Complainant asserts that the patient
was seen by a clinical member of the team. Complainant maintains that having enough time with
each patient is important and she wanted to make sure that her patients got quality care.
Complainant asserts that her colleagues have done the same thing that she did but were not
disciplined as severely as she was. She explains that a white female referred a patient to the
Emergency Department, but she only received a verbal warning and a male colleague that did the
same thing received no disciplinary action at all.
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The Agency did not provide a brief on appeal.
ANALYSIS AND FINDINGS
Standard of Review
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
Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show 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);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume, arguendo, that Complainant
established a prima facie case of discrimination and reprisal with respect to all of her bases, the
Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant
referred a patient to another member of the medical team, a nurse, when she was on call to treat
walk-in patients in violation of established policy. Also, Complainant disclosed PII information
to a union representative. As a result of these incidents, Complainant was reprimand twice. In an
effort to establish pretext, Complainant alleged that other physicians not of her protected bases
were treated more favorably in similar situations. We find, however, that other than Complainant’s
conclusory statements she did not provide any persuasive evidence to support this assertion.
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Under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that
Complainant’s claim of hostile work environment must fail with respect to claims 1 and 2. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that these actions were motivated by discriminatory animus. See
Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As for the
remainder of Complainant’s hostile work environment claim, we find no persuasive evidence that
these matters were either based on her protected classes, were severe or pervasive enough to rise
to the level of unlawful harassment or were anything other than work-related matters.
CONCLUSION
Accordingly, we AFFIRM the Agency ‘s FAD which found that Complainant did not establish
that she was discriminated against.
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.
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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
July 12, 2019
Date
