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

Equal Employment Opportunity Commission

Feb 6, 2023

Appeal No. 2022002271 (E.E.O.C. Feb. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Corie E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002271 Hearing No. 530-2021-00377X Agency No. 200H-0529-2020104801 DECISION On March 21, 2022, 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 March 9, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Worker, 0185, GS-12 at the Agency’s Medical Center in Butler, Pennsylvania. Complainant was a probationary employee. On September 25, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic), disability (mental), and age (51) 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. 2022002271 2 1. From March 3, 2020 until June 26, 2020, Complainant was issued a new laptop that was not mapped which impeded her ability to complete training; 2. On March 12, 2020, and on several other occasions, the staff made comments about Complainant’s food which included, “We are going to have to smell that all day” after she used the microwave; 3. On March 16, 2020, the Team Lead told her, “You had better hope you get deployed so you can get out of here” in addition to several other remarks that were made about her; 4. On March 19, 2020, her clinical capabilities were questioned; 5. On March 26, 2020, an inquiry was made about her mental health and whether she was on medication; 6. On April 21, 2020, the nursing staff at the Women’s Pod made personal inquiries about her; 7. On April 28, 2020, the nursing staff at the Women’s Pod made derogatory statements about her health and that they did not want to touch her; 8. In May 2020, the Team Lead announced in a clinic wide email that Complainant was not on the PCMHI2 Team alluding to Complainant’s possible termination; 9. On May 28, 2020, the Team Lead said Complainant was going to be put on a “Nasty list,” refused to address Complainant’s training questions, and accused Complainant of “coming off hostile and aggressive towards her;” 10. On June 4, 2020, the Team Lead put her hand on Complainant’s shoulder; 11. On June 4, 2020, the Team Lead denied Complainant a lunch break; 12. On June 10, 2020, she was assigned to a temporary detail in Voluntary Services and instructed to “cease and desist” all contact or conversation with the Team Lead; 13. On June 25, 2020, an Agency Police Officer yelled insults at her at the main entrance; and 14. Effective June 26, 2020, she was terminated from her probationary position as a social worker. 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 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. We note that Complainant did not provide additional information regarding every claim. What relevant, explanatory details Complainant did provide in her affidavit and submitted documents are included herein. We note that Complainant’s affidavit included dates for reported activity that differ from dates included in her formal complaint. 2 PCMHI is an acronym for Primary Care Mental Health Integration. 2022002271 3 The individual identified as Team Lead in the claims held the position of Physician Assistant and PCMHI Lead Facility Trainer. Team Lead generally denied recollection of claims 1-13. Regarding claim 14, Team Lead stated that she was informed by her direct supervisor that Complainant was terminated. Complainant’s first-line supervisor (Supervisor) held the position of Chief, Social Work Service. Complainant reported that she overheard Coworker-2 and Coworker-4 on March 5, 2020. Complainant reported overhearing the two coworkers mention Complainant by name. Complainant stated that Coworker-4 said, “[Complainant] is a carrier,” to which Coworker-2 responded, “She doesn’t look sick. Well, at least she is a cute carrier.” Complainant reported that Coworker-1 “fueled” the health comments. Complainant reported that Coworker-1 stated, “I told you she was nasty.” Complainant stated that Coworker-1 repeated “nasty” throughout multiple workdays under her breath while at her cubicle. Complainant reported that Coworker-1 paraded people through the workstation to have them stop and gawk at Complainant. Complainant explained that this was possible because her desk was directly next to the entrance door. Complainant stated that she began reporting Team Lead’s condescending style of communication on March 11, 2020. Complainant also characterized Team Lead’s style of instruction as antagonistic and stressful. Complainant stated that Team Lead delivered information in rapid fire and that Team Lead would provide three different answers to the simplest of questions. Complainant stated that Team Lead did not maintain the recommended social distancing. Regarding claim 1, Complainant stated, “there were issues with everything assigned to me: IT passwords, access to the various software systems, hardware (laptop issued), CPRS.” Supervisor stated that Complainant was issued a laptop. Supervisor stated that Information Technology worked with Complainant in support of her needs. Supervisor explained that Complainant had a desktop computer at her assigned workstation and that the laptop was not Complainant’s primary source of daily computer access. Regarding claim 2, Complainant reported that Coworker-1 stated, “Ugh, I can’t stand the smell of their food. Mexican food, now we have to smell it all day.” Complainant reported that Coworker-3 stated on March 11, 2020, “Ugh onions, I can’t stand the smell of onion in their food.” Complainant did not specifically cite conduct in direct reference to claim 4. Complainant generally described a conversation that occurred on March 13, 2020, where Team Lead asked if Complainant had experience diagnosing patients. 2022002271 4 Complainant did not specifically cite conduct in direct reference to claim 5. Complainant generally described that Team Lead asked Complainant on March 13, 2020, if Complainant was ever assessed for fitness for duty. Complainant reported that Team Lead stated she was “just curious” because Complainant appeared to be under a lot of stress. Complainant stated that Team Lead asked if Complainant was on medications. Complainant did not specifically cite conduct in direct reference to claim 7. Complainant reported that on March 18, 2020, Coworker-3 stated to staff while Complainant was present, “Yuck. I like her but I wouldn’t want to touch her.” Regarding claim 8, Supervisor stated that she was unable to locate any such email. Supervisor explained that emails to PCMHI stakeholders are commonly circulated. Supervisor noted, however, that Team Lead is not a supervisory role and would not have been involved in any personnel discussion. Supervisor noted that there were no actions toward removing Complainant from her probationary appointment at the time of the reported email. Regarding claim 9, Supervisor explained that “nasty list” was an inaccurate term for a daily report that is created to ensure that encounters are completed correctly. Supervisor noted that Team Lead completed an ROC on May 28, 2020, detailing that Complainant had not properly closed an encounter on CPRS, an Agency administrative program. Regarding claim 11, Complainant reported that on or about June 4, 2020, Team Lead denied Complainant’s request for a 30-minute break for lunch/sofa delivery. Supervisor stated that Complainant was not denied a lunch break. Supervisor explained that Complainant had initially requested a lunch break to leave campus for 30 minutes for a furniture delivery during a window of time from 10 AM to 2 PM. Team Lead was not available to cover handoffs to the PCMHI team from 1 to 2 PM. Team Lead indicated to Complainant that the request could not work in support of Veteran Care. Supervisor noted that Complainant then requested and received approval to use her lunch break from 4 to 4:30 PM to be at home to receive the furniture delivery. Regarding claim 12, Complainant stated that the reason for the temporary detail with the “cease and desist” order was that a coworker was nervous about Complainant’s “emotional intensity” when Complainant was describing prior events from Complainant’s life. Supervisor stated that the reason for Complainant’s temporary detail to Voluntary Services was a pending investigation into alleged threatening behavior by Complainant towards another employee. The record contains multiple ROCs filed by two employees where they reported feelings of intimidation or concerns for their own safety. For instance, Coworker-5 completed an ROC dated April 29, 2020, where she reported feelings of intimidation and serious concern about Complainant. Coworker-5 described a conversation where Complainant shared that she has a high-level military security clearance and has hired private investigators to investigate former coworkers who Complainant believes are after her. 2022002271 5 Coworker-5 stated that Complainant said, “I feel comfortable with you, I know you wouldn’t do that to me because you’re smart and you know if this conversation goes anywhere, you would be subpoenaed to court when this all goes public in my book.” Team Lead also completed two ROCs regarding this issue. In the first, Team Lead reported that Complainant described that “people” have been trying to harass her and slander her reputation for years. Team Lead reported that Complainant then accused Coworker-1 of being used by these “people” as a disseminator of information to harass Complainant. Team Lead expressed concern about the safety and privacy of herself and her coworkers. Team Lead reported that Complainant self- reported a history of hiring a private investigator to investigate previous coworkers she believes are harassing her and slandering her reputation. Regarding claim 14, Complainant received a letter with the subject line “Termination During Probationary Period.” The letter indicates that the termination was for inappropriate conduct and failure to qualify during the probationary period. Supervisor explained that the ROCs were representative examples of Complainant’s inappropriate conduct. Supervisor noted that there was significant concern that Complainant was not aware that her behavior was disruptive and causing significant tension among the team. Supervisor explained that fact finding interviews were conducted regarding the reported conduct. Supervisor also stated that concerns about Complainant’s performance were persistent and worsening. The record contains six ROCs that detail Complainant’s continued deficits in skills and job knowledge despite repeated trainings with multiple members of the team. ANALYSIS AND FINDINGS 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”). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2022002271 6 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); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he 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 or his 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged bases. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the personnel actions at issue. Regarding claim 12, Complainant was temporarily detailed to Voluntary Services to allow for an investigation into Complainant’s reported threatening conduct towards coworkers. Two workers completed ROCs where they detailed concerns for their safety because of Complainant’s conduct. 2022002271 7 Regarding claim 14, the termination letter listed that the reasons for the termination were failure to qualify during the probationary period and Complainant’s inappropriate conduct. The ROCs from coworkers detailing their concern for their safety because of Complainant’s behavior were representative examples of the inappropriate conduct. The record contains six ROCs that detail Complainant’s continued deficits in skills and job knowledge despite repeated trainings with multiple members of the team. After a review of the record, we find Complainant failed to show that the Agency’s articulated reasons for the discrete adverse employment actions were a mere pretext for discrimination. The record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances. Regarding the claim of harassment, including the claims not specifically addressed in the Background portion of this decision (Claims 3, 6, 10, and 13) we find that the conduct was not sufficiently severe or pervasive to result in an alteration of the conditions of Complainant’s employment and create an abusive working environment. We note that Complainant provided no elaboration regarding claim 10. The conduct Complainant described, when evaluated from an objective viewpoint, represents personality conflicts, general workplace disputes, trivial slights and petty annoyances. Such conduct does not rise to the level of a hostile work environment. CONCLUSION Accordingly, the Agency’s decision finding no discrimination is AFFIRMED. 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). 2022002271 8 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. 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. 2022002271 9 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 6, 2023 Date