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

Equal Employment Opportunity Commission

Mar 28, 2022

Appeal No. 2021005068 (E.E.O.C. Mar. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Corie E.,1 Complainant, v. Dennis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021005068 Hearing No. 430-2020-00563X Agency No. 2004-0590-2020101797 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 3, 2021 final order 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. 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (RN) III/Patient Transfer Coordinator, at the Agency’s VA Medical Center in Hampton, Virginia. On April 7, 2020 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), color (White), national origin (British), age (58), and in reprisal for prior protected EEO activity 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. 2021005068 2 1. On January 29, 2020, Complainant learned the Chief of Mental Health was keeping her detail in effect, from the Mental Health Caregiver Support unit to the Physical Medicine and Rehabilitation Services unit; 2. On May 7, 2020, the Deputy Chief of Staff reassigned Complainant without a telework option, which placed her health at risk during the COVID-19 pandemic; and 3. On May 7, 2020, the Deputy Chief of Staff reassigned her from RN in the Mental Health Behavioral Science to RN Transfer Coordinator in the Medicine Service - Flow Depot; effective May 24, 2020.2 In April 2019, as a result of an investigation into the Caregiver Support Program, Complainant was placed on a detail assignment from the Mental Health Caregiver Program to Physical Medicine and Rehabilitation Services. The Agency twice extended Complainant’s detail. In May 2019, the Director ordered the Administrative Investigative Board (AIB) to investigate “multiple allegations of mismanagement, unethical, inappropriate and/or illegal activity in the Caregiver Support Program, such as mismanagement of funds, inappropriate hiring practices, inappropriate patient/employee boundaries, inappropriate use of Government Owned Vehicles and timecards, inappropriate documentation in Veterans records, and possible [Health Insurance Portability and Accountability Act] or privacy violations.” In September 2019, the AIB completed its investigation and substantiated most of the allegations. Several of the substantiated allegations implicated Complainant. Based on the AIB’s findings and recommendations, Agency management proposed Complainant’s removal in December 2019, for misuse of government property. The proposed removal action was rescinded, however, in January 2020. On January 29, 2020 and March 26, 2020, Complainant learned that the detail would again be extended. On May 7, 2020, Complainant was involuntarily permanently reassigned as an RN - Transfer Coordinator to Medicine Service - Flow Depot. Complainant remained in the same series, grade, and step, with no change in her pay. The reassignment was formally effective May 24, 2020. Complainant was told that the reassignment was due to the AIB’s recommendation. Several other employees from the Mental Health Caregiver Program were moved as well based on the AIB’s recommendations. Additionally, Complainant was informed that telework was a “supervisory call for the current COVID situation.” On May 15, 2020, Complainant was advised by her new supervisor that there were no telework opportunities for transfer coordinators because they are all located on site. 2 The Agency dismissed an additional claim for failure to state a claim. Complainant raised no challenges regarding this matter on appeal; therefore, the Commission can find no basis to disturb the Agency’s dismissal decision. 2021005068 3 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. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 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 based 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). In order 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. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant failed to establish such a dispute. The record showed that the Agency articulated legitimate, non- discriminatory reasons for its actions. Agency management initially placed Complainant in a detail assignment while an investigation was conducted into numerous allegations of misconduct and mismanagement. The detail assignment was extended while the matter was being resolved. The AIB determined that several of the substantiated allegations involved Complainant’s misconduct. The AIB recommended that staff, including Complainant, be reassigned. Complainant was reassigned because of the substantiated allegations and at the recommendation of the AIB. The Agency took the actions recommended by the AIB and were deemed appropriate. Granting telework was at the discretion of Agency management and Complainant’s position was not telework-eligible because it required on-site work. Although Complainant disagreed with management’s perceptions, she did not offer evidence that the stated reasons were untrue. Moreover, Complainant did not provide sufficient evidence that the Agency management officials in this matter harbored discriminatory or retaliatory animus. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2021005068 4 Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, for the reasons stated here, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 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. 2021005068 5 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. 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 March 28, 2022 Date