[Redacted], Cathey V., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 21, 2023

Appeal No. 2022000519 (E.E.O.C. Feb. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cathey V.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000519 Hearing No. 480-2020-00816X Agency No. 200P-0691-2019105608 DECISION On November 30, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 6, 2021 final order 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Senior Social Worker, GS- 12, in Bakersfield, California. On October 18, 2019, filed a formal complaint. Complainant claimed that the Agency discriminated against her based on her sex (female) when the Agency subjected her to a hostile work environment formal as reflected by the following events: 1. On April 16, 2019, Complainant’s supervisor indicated on Complainant’s mid-year appraisal that Complainant had failed to perform all assigned duties. 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. 2022000519 2 2. On June 4, 2019, Complainant learned that her supervisor had instructed the Acting Manager not to approve Complainant’s leave request. 3. On July 22, 2019, Complainant’s supervisor required Complainant to attend out-of- area meetings during working hours without affording her adequate travel time during her regular tour of duty. 4. On August 5, 2019, during a meeting with Complainant and her peers, Complainant’s supervisor accused her of making data entry errors, and treated her dismissively. 5. On August 7, 2019, Complainant’s supervisor failed to act on aftercare referrals submitted by Complainant. 6. On August 30, 2019, Complainant’s supervisor assigned Complainant a disproportionate number of cases from a former co-worker. 7. On September 9, 2019, Complainant’s supervisor stated that she would hold Complainant accountable for not abiding by every possible directive. 8. On September 12, 2019, management scheduled Complainant as the sole clinical staff member. 9. From September 12, 2019 to September 25, 2019, Complainant’s supervisor did not process Complainant’s leave requests. 10. On October 2, 2019, Complainant’s supervisor failed to reply to Complainant’s correspondence regarding her sick leave request. 11. On January 13, 2020, Complainant’s supervisor questioned Complainant regarding her leave request for January 17, 2020. 12. On January 13, 2020, Complainant was issued a letter of counseling. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a motion for summary judgment. Complainant filed a response to the motion. The AJ subsequently issued a summary judgment decision finding no discrimination was established. The Agency issued its final order adopting the AJ’s summary judgment finding of no discrimination. The instant appeal followed. 2022000519 3 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614(EEO-MD-110), at Chap. 9, VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specifically, 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in factor of Complainant, a reasonable fact-finder could not find for Complainant. To prove her harassment/hostile work environment 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 a protected basis - in this case, her sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). During the relevant period, Complainant’s first line supervisor was the Supervisory Social Worker (female). Regarding claim 1, Complainant’s supervisor commented on Complainant’s mid-year appraisal, regarding Complainant not performing all of her assigned duties. The supervisor addressed various categories of performance. The supervisor addressed direct patient care, documentation, professional and interpersonal relationships, professional responsibilities, customer service, safety and productivity. She stated the specific category which Complainant needed to improve was the productivity category. The supervisor stated that Complainant needed to increase her work relative value units. Complainant’s productivity goal for the Fiscal Year 2019 was 100. In order to be successful, Complainant has to make at least eighty percent. At that time, Complainant was slightly above sixty percent. 2022000519 4 Regarding claim 2, Complainant learned that her supervisor had instructed the Acting Manager not to approve Complainant’s leave request. On June 4, 2019, Complainant submitted annual leave for June 20, 2019. The supervisor had not responded as of June 10, 2019, and had taken leave on that date. The Acting Manager was acting during the supervisor’s absence. Complainant asked the Acting Manager to approve her leave request. The Acting Manager, however, informed Complainant that she could not approve annual leave requests while the supervisor was absent. The Acting Manager assumed she could not approve any annual leave because she did not have access to the staff’s leave balances. The Acting Manager then forwarded Complainant’s requests to the Deputy Program Coordinator who had access to staff leave balances and verified that Complainant had sufficient leave for her request. Upon being so informed by the Deputy Program Coordinator, the Acting Manager then approved Complainant’s request. Regarding claim 3, Complainant’s supervisor stated that on June 6, 2019, she scheduled mandatory training to be held on July 26, 2019, in Santa Barbara, California. Complainant and her Bakersfield co-workers were all required to attend training. The Bakersfield co-workers protested the necessary travel time would require them to work past their regular duty schedules. Complainant’s co-worker requested overtime compensation, but the supervisor denied it, but approved compensatory time for all Bakersfield staff. Regarding claim 4, Complainant stated that during a staff meeting, the supervisor inaccurately accused Complainant, in a rude and condescending manner, of failing to enter data into the team “white board.” Complainant stated to the supervisor that the accusation was not accurate, and that the supervisor was dismissive and not accepting her request to show that the data was entered. We discern no discriminatory animus reflected in the supervisor’s comment. Regarding claim 5, Complainant stated that on July 15, 2019, she sent an email to the supervisor requesting that she forward a referral for a patient to the Aftercare program. The supervisor stated that Complainant made two Aftercare referrals at approximately the same time. The responded to one, but inadvertently overlooked the other one. When Complainant reminded the supervisor that she had not yet responded to the other referral, the supervisor immediately forwarded the referral. Regarding claim 6, Complainant stated that on August 30, 2019, the supervisor assigned Complainant 23 of the 30 cases that a former colleague left behind upon that individual’s departure and assigned her male counterpart the remaining 7 cases. The supervisor reassigned particular patients so that the two named co-workers had similar weighted caseloads. After both initial reassignment and the adjusted reassignment after Complainant complained, the co-worker had a higher weighted caseload than Complainant. Regarding claim 7, Complainant stated that on September 9, 2019, the supervisor scheduled a meeting with Complainant, and other parties. During the meeting, the supervisor discussed a directive that she had given all the employees, but with which none had complied. 2022000519 5 While she looked directly at Complainant, the supervisor stated “I will hold you accountable” for not following directions. The supervisor stated this remark was directed to all employees, not just Complainant. Regarding claim 8, Complainant stated that on September 12, 2019, she was surprised to discover that she would be the only clinical staff member on duty. The supervisor, however, could not comprehend the nature of this claim. The supervisor stated that the only point she could think of, was that a male counterpart was going through a phase of deciding when he wanted to retire, but he was still on duty. and Agency management had also hired new employees, who were being onboarded. Regarding claim 9, Complainant stated that on September 12, 2019, Complainant sent an email to the supervisor requesting one hour of compensatory leave for October 1 and annual leave for November 7 and 8, 2019. On September 23, 2019, Complainant sent an email to the supervisor stating that the leave request for October 1, 2019, was for an appointment. On September 25, 2019, Complainant sent an email the supervisor asking for a response to her leave request for October 1. On the same day, the supervisor granted Complainant’s requests. Regarding claim 10, Complainant stated that on October 2, 2019, she sent an email to the supervisor asking for sick leave beginning at 1:00 p.m. that day. The supervisor was away from her computer and did not see Complainant’s email. On or around 11:34 a.m. Complainant sent the same request to the supervisor. She did not immediately see this email either. Complainant then called the supervisor approximately at 1:15 p.m. repeating her request. The supervisor granted Complainant’s request. Regarding claim 11, Complainant stated that on January 13, 2020, Complainant sent an email to the supervisor requesting leave for January 17, 2020. On the same date, the supervisor met with Complainant to discuss her pattern of leave usage during the 2019 calendar year. She informed Complainant that she had a pattern of taking leave on a Monday or Friday and the day before or after a federal holiday. Furthermore, the supervisor issued Complainant a Notice of Inappropriate Leave Pattern. The Notice stated that during the period June 23, 2019 - January 6, 2020, Complainant had used 66 hours of sick leave, 48 hours of annual leave, and one hour of compensatory time. The Notice also stated Complainant’s absences had a significant impact on the service and care provided to patients. Regarding claim 12, Complainant asserted that she was issued a letter of counseling. Specifically, Complainant stated that the supervisor issued her a letter of counseling of inappropriate leave pattern. While the supervisor did not issue the letter of counseling, the supervisor stated that based on what has been happening with Complainant, she has started putting everything in writing. During the meeting with Complainant, they discussed Complainant’s leave. Complainant’s second line supervisor stated that Complainant did not report this issue to her, but the supervisor had discussed it with her, and the second line supervisor agreed that a letter of counseling was the right course of action. 2022000519 6 The image which emerges from considering the totality of the record is that the decision of the AJ in this matter is fully supported by the evidence of record. It is clear there were conflicts and tensions with routine managerial decisions and supervisory style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of their protected bases. Here, the preponderance of the evidence does not establish that the responsible management officials were motivated by Complainant’s sex. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that her sex played any role in the disputed actions. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2022000519 7 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022000519 8 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 February 21, 2023 Date