Valerie M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 9, 2018

0120170039 (E.E.O.C. Nov. 9, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valerie M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120170039 Agency No. 2004-0565-2012104470 DECISION Complainant timely 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 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant was not subjected to disparate treatment and a hostile work environment, as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chief of Primary Care at the Agency’s Medical Center in Fayetteville, North Carolina. On November 30, 2012, and subsequently amended, Complainant filed an EEO complaint alleging that the Agency 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. 0120170039 2 discriminated against her on the bases of race (Caucasian), national origin (Native American), sex (female), religion (Catholic), disability (diabetic), age (52), and in reprisal for prior protected EEO when: 1. In January 2012, the Chief of Dental Department was asked to act as Chief of Staff; however, she (Complainant) had never been asked the same during her tenure as Chief of Primary Care; 2. On January 1, 2012, through November 30, 2012, she was never given a “buddy” Service Chief as had been the standard practice; 3. From January 1, 2012 through November 30, 2012, while serving as Chief of Primary Care, she was denied the proper personnel to run her department; 4. From April 2012 through September 2012, she was required to turn in a monthly action plan to the Chief of Staff regarding her alleged “communication issues;” 5. Sometime in April 2012, the Chief of Staff informed her that she would not receive any additional staff; 6. In April 2012, it was suggested that she receive an Assistant Chief, but the Chief of Staff told her it would never happen; 7. On April 17, 2012, the Chief of Staff told her that she (Complainant) has difficulty communicating with people; therefore, she needed to attend a communications class; 8. On April 23, 2012, when she attempted to correct the rooming and staffing report, the Chief of Staff told her that she was not a “team player;” 9. From June 2012 through November 30, 2012, the Chief of Staff continually undermined her authority by giving instructions to her administrative and clinical staff which often conflicted with her decisions, without informing her; 10. On July 17, 2012, she alleged reprisal in a letter to the Director, and shortly thereafter the Chief of Staff informed her that she could not miss any meetings at the facility even if she had coverage; 11. On August 15, 2012, she was issued a Letter of Reprimand (LOR) for failure to do a fact- finding while she was on leave; 12. On August 15, 2012, she was issued a Letter of Counseling (LOC) regarding frequent use of sick leave; 0120170039 3 13. In September 2012, she requested leave under the Family Medical Leave Act (FMLA), though the Human Resources (HR) Specialist, but the paperwork was never processed; 14. In September 2012, she requested a reasonable accommodation through HR and turned in her paperwork to the HR Specialist who later said she never received a copy. Thus, the request was never processed; 15. On September 4, 2012, the Chief of Staff issued her a Letter of Counseling (LOC) for excessive leave usage; 16. On September 11, 2012, the Chief of Staff told her, “You will soon be leaving and the service agreement signed by you will be invalid;” 17. On November 25, 2012, after having been accepted into the Geriatric Scholars Program, the Chief of Staff denied her the ability to be a Geriatrics Scholar because she was Chief of Primary Care; 18. On November 30, 2012, the Chief of Staff issued her a letter which removed her as Chief, Primary Care Service Line at the Fayetteville VA Medical Center effective immediately; 19. On November 30, 2012, she was issued a sick leave certification letter which was effective the date of the letter; 20. Beginning on November 30, 2012, she remained physically located in Primary Care although she was no longer assigned to Primary Care; 21. From November 30, 2012 through January 2013, she was denied the use of her ergonomic equipment; 22. During December 2012, two employees informed her that they were not to communicate with her and two other employees; 23. On December 18, 2012, she received notification of a performance bonus which has not been given to her; 24. On January 28, 2013, she was denied access to her office; 25. On January 30, 2013, the Acting Chief of Primary Care was asked to act as Chief of Staff; however, she (Complainant) had never been asked the same during her tenure as Chief of Primary Care; 26. On February 9, 2013, she was incorrectly classified as a family practitioner, when in fact, her specialty is internal medicine; 0120170039 4 27. On March 11, 2013, she received only one day of Compensation and Pension training with a Preceptor; 28. On March 18, 2013, she learned that a notification of personnel action lowered her salary from $220,000 to $175,000 per annum because of an involuntary reassignment; 29. On March 27, 2013, and April 10, 2013, she was scheduled to work in the Spinal Cord Injury Department, causing her to miss scheduled Compensation and Pension Department meetings; 30. As of April 15, 2013, she did not receive her performance standards for evaluation with regard to Compensation and Pension and Spinal Cord Injury; 31. On April 17, 2013, she was asked to explain how grant money in the amount of $357,000 was spent; and 32. On May 9, 2013, she received a letter from the Acting Chief of Staff, stating that her reassignment from the position of Chief, Primary Care, previously cancelled due to improper appeal rights, was going to be reissued “as practicable” in order to provide her with appropriate appeal rights. Following 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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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. The Agency first addressed those claims which were discrete events. As to Claim 11, the Agency found that Complainant was issued the LOR for failing to perform a fact-finding investigation and being disrespectful to colleagues. The Agency also observed, with regard to claim 13, that there were some pieces of information missing from Complainant’s FMLA form, but Complainant never provided the missing information as requested. In addressing claim 14, Complainant’s request for accommodation, the Agency noted that Complainant did not respond to the Agency’s request for medical documentation. The Agency moreover noted that Complainant admitted that she did not pursue her request for reasonable accommodation after she was removed from her position of Chief of Primary Care, as she was no longer asked to provide coverage for the Emergency Room. The Agency also addressed claim 15, finding that Complainant received the LOC for excessive absences during the period of January 1, 2012, though August 16, 2012, as she was absent for 35 days. In addressing claim 17, the Agency noted that Complainant’s request to attend the training was denied because she was needed to perform her duties in Primary Care. 0120170039 5 With respect to claim 18, the Agency noted that Complainant was removed from her role as Chief of Primary Care because there were about 3000 unassigned patients, she failed to attend key meetings, and failed to treat her staff with respect, among other things. With regard to claim 19, the Agency found that Complainant was issued the sick leave certification after she had been previously warned about excessive sick leave usage. Regarding claim 23, the Agency found that Complainant’s performance bonus was reduced due to poor performance, and also noted that all of the physicians received their bonuses in late March or early April 2013. The Agency next addressed claim 28, finding that Complainant’s salary was initially adjusted to mirror her new duties after she was reassigned. The Agency noted that Complainant’s salary was nevertheless restored after it was determined that the salary adjustment should not have taken place. The Agency further observed, with respect to claim 30, that all employees experienced a delay in receiving their performance standards. As for claim 32, the Agency found that it was appropriate to issue Complainant with another letter, as the first letter removing Complainant from the position of Chief of Primary Care did not contain appeal rights. With respect to Complainant’s remaining claims, the Agency noted that Complainant alleged that she was subjected to harassment when, among other things, she was denied access to her office; not allowed access to her ergonomic equipment; coworkers were informed not to speak to her; she was not given sufficient preceptor training; she was unable to attend Compensation and Pension meetings because they were scheduled during her shifts at the spinal injury department; and she was identified as a family practitioner on her SF-50 even though she is an internist. The Agency however found that Complainant failed to show that any of the alleged events were severe or pervasive enough to rise to the level of a hostile work environment. The Agency additionally found that Complainant did not show that any of the events were motivated by discriminatory animus, and therefore she did not establish that she was subjected hostile work environment harassment as alleged. CONTENTIONS ON APPEAL Neither party has filed a brief on appeal. 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”). 0120170039 6 ANALYSIS AND FINDINGS Disparate Treatment (Claims 4, 11-15, 17, 18, 19, 23, 28, and 32)2 To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her protected classes, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to claim 4, the Chief of Staff explained that she received several complaints from employees that Complainant communicated with them in a poor and in an angry manner. The Chief of Staff also explained, with regard to claim 11, that Complainant was issued the LOR for conduct and performance issues, reasons other than the failure to conduct a fact-finding investigation. In addressing claims 12 and 15, the Chief of Staff stated that Complainant was issued the Letters of Counseling due to excessive sick leave usage and for not providing medical documentation for the leave. Regarding claim 13, the Employee and Labor Relations Specialist explained that Complainant did not submit a complete FMLA packet and kept refusing to provide the missing information. As for claim 14, the Employee and Labor Relations Specialist attested that Complainant never provided the requested medical documentation and then never followed up on her request. With regard to claim 17, the Chief of Staff responded that Complainant was needed more in the hospital taking care of primary care business at the time. In responding to claim 18, the Chief of Staff averred that Complainant was reassigned due to her poor performance as the Chief of Primary Care. The Chief of Staff cited to the Reassignment Notice issued to Complainant on November 30, 2012, which outlined the specific reasons for deciding to reassign Complainant. The Chief of Staff also attested with regard to claim 19, that Complainant was warned about her leave usage but had continued to show a pattern of requesting leave in conjunction with other leave and days off. With regard to claim 23, the Employee and Labor Relations Specialist averred that all physicians were issued their performance bonuses late. As for claim 28, the Employee and Labor Relations Specialist explained that HR Staffing and Recruitment mistakenly changed Complainant’s salary after she was reassigned. 2 We find that these claims are more appropriately addressed as allegations of disparate treatment. 0120170039 7 The Employee and Relations Specialist explained that Complainant’s salary was restored with back pay after management became aware of the mistake. In addressing claim 32, multiple management officials explained that the first reassignment letter issued to Complainant did not have the necessary appeal rights, so a new letter needed to be issued with the proper rights. The burden now shifts to Complainant to establish that the Agency’s nondiscriminatory reasons were a pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant states, inter alia, that the Chief of Staff began to treat her in a negative manner after she asked the Chief of Staff to address their working relationship in a mediation setting. She states that the Chief of Staff declined to participate and issued her the LOR for the failure to follow supervisory instructions immediately thereafter. Complainant also contends that the Chief of Staff knew of her diabetic condition, and said she should resign from her position because the work-related stress could negatively affect her health. Upon review, we find that Complainant has not established that the Agency’s reasons were pretext for discrimination based on her protected classes. We note that multiple management officials responded to Complainant’s allegations herein, and we find that Complainant has not shown that their statements to be untrue. There is simply no evidence that the Chief of Staff, or any other management official, acted with discriminatory or retaliatory animus in taking any of the above actions against Complainant. The record does not show that the Agency’s reasons are unworthy of belief here. As Complainant withdrew her request for a hearing, we do not have the benefit of an Administrative Judge’s credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Complainant additionally did not make any contentions on appeal. Based on the record before us, we are not persuaded that Complainant has shown that the Agency’s conduct was based on her protected classes, as alleged. Hostile Work Environment Harassment With respect to Complainant’s allegation that she was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant’s harassment claim is precluded based on the Commission’s finding that she failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus with regard to claims 4, 11-15, 17, 18, 19, 23, 28, and 32. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). With respect to claims 1-3, 5-10, 16, 20-22, 24-27, and 29-31, we find that Complainant has not proven that she was subjected to a hostile work environment as the events were not sufficiently severe or pervasive so as to establish a legally hostile work environment. Although Complainant’s work environment may not have been ideal, we do not find that it was hostile and/or abusive based on Complainant’s protected classes. We note that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. 0120170039 8 See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009). Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory or retaliatory animus. We find that the Agency’s actions toward Complainant here were ordinary workplace interactions, with no abusive conduct. As such, we find that Complainant has not established that she was subjected to a hostile work environment based on her protected classes, as alleged. 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. 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. 0120170039 9 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 November 9, 2018 Date