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

Equal Employment Opportunity Commission

Feb 14, 2023

Appeal No. 2022000248 (E.E.O.C. Feb. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Genny L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000248 Hearing No. 520-2021-00325X Agency Nos. 200H-0620-2019104798, 200H-0620-2019102854 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated October 13, 2021, finding no discrimination concerning her consolidated complaints 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, we AFFIRM the Agency’s final decision finding no discrimination regarding the consolidated complaints. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-13, Program Analyst - Planetree Coordinator at the Agency’s Hudson Valley Health Care System in Montrose, New York. On May 4, 2019, Complainant filed her complaint, Agency No. 200H-0620-2019102854, alleging that: 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. 2022000248 2 A. She was subjected to discrimination and a hostile work environment based on race (African American), color (black), sex (female), and in reprisal for prior EEO activity when: 1. On April 1, 2019, her first-level supervisor (S1), the Executive Assistant to the Director/Health Systems Specialist, GS-13, changed her schedule. 2. On May 9, 2019, S1 issued a mid-year performance appraisal for her which did not reflect the work performed. 3. On various dates, including April 30, 2019, S1 subjected her to harassment by denying her sick leave request, pretending to look for her, sending her threatening emails, sending text messages to her personal phone, and ordering her to report to a different work location an hour from her home without reimbursement, then threatening her with Absent Without Leave (AWOL) when she refused. 4. On unspecified dates, S1 subjected her to harassment by micromanaging her and asking about her whereabouts, changing her supervisors, failing to respond to her complaints and concerns, preventing her from attending the Executive Governance Board meetings, and trying to make her work outside of her reasonable accommodations.2 On August 12, 2019, Complainant filed another complaint, Agency No. 200H-0620- 2019104798, which was amended, alleging that: B. She was subjected to discrimination and a hostile work environment based on race (African American), color (black), national origin (Ghana), and in reprisal for prior EEO activity when: 1. On April 17, 2019, S1 removed her as the co-chair of the Patient and Family Advisory Council (PFAC). 2. On May 6, 2019, S1 disinvited her to a meeting with Planetree International, an organization she is responsible for working with. 2 The Agency previously issued a final decision dismissing the complaint, Agency No. 200H- 0620-2019102854. Complainant appealed, and the Commission, in EEOC Appeal No. 2019004589 (Jan. 15, 2020), reversed the Agency’s dismissal of claims A.1 - A.4, identified herein, for failure to state a claim but affirmed its dismissal of two other claims (i.e., concerning a staff meeting on September 21, 2018, and an October 2018 performance appraisal) due to untimely EEO Counselor contact. Accordingly, the Agency accepted and investigated claims A.1 - A.4. We will consider the dismissed claims as background information for Complainant’s harassment claim herein. 2022000248 3 3. On May 8, 2019, S1 issued her an Unacceptable rating in her mid-year performance appraisal. 4. On May 17, 2019, S1 issued her a Reprimand for Failure to Follow Leave Requesting Procedures and Failure to Follow Instruction. 5. On May 31, 2019, S1 instructed her to delete critical information from the April PFAC after the minutes had been approved by the members and the PFAC chair. 6. On June 13, 2019, S1 disinvited her from attending and discussing her work with the Long-Term Care Institute at Castle Point and sent an email accusing her of lying and misrepresenting facts. 7. On June 20, 2019, S1 planned a visit without her consent and asked her to approve an invoice for service that was a violation of the contract. 8. On June 24, 2019, S1 warned her that any changes in tour of duty or location needed approval, despite her Caucasian coworker not needing approval to change his tour of duty or location. 9. On July 2, 2019, S1 scolded her for not notifying S1 when she came to work after an appointment. 10. On July 5, 2019, S1 scolded her in an email for sending an action plan on July 5, 2019, instead of on the holiday July 4, 2019, and warned her not to repeat it. 11. On July 9, 2019, S1 disinvited her to the Long-Term Care Institute survey discussion at the Montrose Facility. 12. On July 19, 2019, at a “supervision” meeting, S1 claimed S1 did not know what Complainant did every day and S1 mocked her and stated that she spent most of her time creating PowerPoint slides. S1 then instructed her to remove any reference to Complainant’s third-level supervisor (S3) (a Senior Executive Service, the Medical Center Director), being involved in the cultural transformation efforts. 13. On September 10, 2019, she was issued a Proposed Removal for misstatement of medical fact, conduct unbecoming, careless or negligent workmanship, unauthorized absence, failure to follow Agency policy, and out of assigned work area. 14. On August 7, 2019, S1 reassigned her duties as co-chair of the Strategic Analytics for Improvement and Learning committee to another employee. 15. On August 14, 2019, S3 put her committee tasks and responsibilities to solicit design for the new Community Living Center (CLC) on hold. 2022000248 4 16. On September 27, 2019, S1 assigned her several tasks to degrade, humiliate, and make her feel unworthy. 17. On August 22, 2019, her second-level supervisor (S2), a GS-15, Associate Director, terminated negotiations with the Cleveland Clinic and VISN (Veterans Integrated Services Network) Contracting Staff without consulting her. 18. On October 8, 2019, S1 denied her request to modify her schedule to Tuesday (Castle Point facility), Wednesday, Friday, 8:00 - 16:30, and Monday and Thursday, 8:45 - 17:15. 19. On October 10, 2019, S1 sent an email stating her tour would be changed, disapproved her attendance at the Planetree International Conference in Florida, threatened that she would no longer chair the CLC taskforce to advance the Planetree agenda in the CLC, and threatened that the Planetree contract would be terminated. 20. On October 18, 2019, S1 denied her request to attend the annual American Public Health Association conference, to be held on November 2 - 6, 2019, in Philadelphia, Pennsylvania. 21. Effective October 17, 2019, her schedule was changed to Monday - Friday, 8:00 - 16:30. 22. On December 5, 2019, S1 rated her as Unacceptable on her Fiscal Year (FY) 2019 performance rating and issued her a new job description that was significantly different, less prestigious, less interesting, and diminished material responsibilities. 23. On December 16, 2019, S1 stripped her of responsibilities as a full - fledged Planetree Coordinator. 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 EEOC Administrative Judge (AJ). 29 C.F.R. § 1614.108(f). Complainant requested a hearing for Agency No. 200H-0620-2019102854, but later withdrew the request. For Agency No. 200H- 0620-2019104798, Complainant requested a final Agency decision. The Agency issued a final Agency decision for the consolidated complaints concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. Regarding claim A.1, S1 indicated that she did not change Complainant’s schedule on April 1, 2019. S1 stated that Complainant had the same schedule (Monday - Friday, 9:00 am - 5:30 pm) since September 3, 2018. S1 indicated that on March 25, 2019, Complainant requested to her then supervisor to modify her schedule for Fridays, 7:00 am - 3:30 pm, for her child’s soccer schedule. Complainant’s then supervisor denied the request because starting Complainant’s work at 7 am was not beneficial to the organization or veterans. 2022000248 5 S1 stated that when Complainant transitioned to S1’s supervision on April 1, 2019, S1 also did not approve Complainant’s Friday schedule change. S1 noted that she did grant Complainant’s request to report to the Castle Point facility only one day per a week, instead of two days. The record indicates that Complainant’s position required her to work at both Castle Point and Montrose facilities. Regarding claims A.2 and B.3, Complainant’s mid-year performance review, dated April 19, 2019, reveals that her performance was “Needs improvement to be Fully Successful or better.” Specifically, S1 noted that Complainant did not fully meet the critical elements in the areas of: Planetree recognition/designation (i.e., inappropriate commentary at Planetree exit and not working collaboratively with staff); patient centered care (i.e., not managing the PFAC members properly and inappropriate action plans); and customer service (i.e., inappropriate congressional response letter and unprofessional conduct by advising CLC family not to leave money with the resident because staff may steal it). S1 notified Complainant to write an action plan to demonstrate improvement in the above cited areas. Further, S1 notified Complainant to update action plans on a weekly basis and submit a monthly executive level summary. S1 indicated that Complainant’s action plan would be due on May 15, 2019, and her weekly supervision meeting would take place on May 17, 2019, to discuss her action plan updates. Regarding claim A.3, S1 stated that on April 30, 2019, S1 marked Complainant AWOL after consulting with Human Resources (HR) because Complainant did not come for a meeting or report to the work at the Castle Point facility as instructed. Instead, Complainant reported to the Montrose facility. Later that morning, Complainant put in a request for sick leave (two hours from 3:30 pm to 5:30 pm). S1 initially denied the sick leave request after consulting with HR because Complainant was already marked AWOL, but later a HR Specialist advised S1 that charging AWOL was improper when sick leave was requested. Accordingly, S1 retracted the denial and canceled AWOL and apologized to Complainant. S1 denied pretending to look for Complainant; rather, S1 stated that S1 was looking for Complainant to discuss work related matters. S1 denied sending Complainant threatening emails. S1 indicated that the most of time, she sent text messages to Complainant in response to her initial text messages. When Complainant told S1 not to text her, S1 complied and S1 never sent a text message since then. Regarding claim A.4, S1 indicated that as her supervisor, S1 discussed with Complainant her work assignments and how S1 could help her; S1 also that she assigned Complainant tasks and duties. S1 stated that she was asking Complainant’s whereabouts because she could not find Complainant. S1 noted that she then learned that Complainant came to work one or two hours late several times without informing her or requesting time off. In February 2019, S3 made a decision to organizationally move Complainant’s position under a newly formed Veteran Experience Office under the supervision of a new Veteran Experience Officer (VEO). 2022000248 6 But, since the position and the office were brand new, the VEO wanted more time to figure out the role and purpose of the new service before Complainant was assigned to her supervision. Considering the VEO’s concerns, in April 2019, S3 decided to move Complainant’s position back under S1’s supervision so the VEO could redesign her service. S1 stated that she had nothing to do with this incident. S1 indicated that she properly responded to all Complainant’s concerns and emails, including all her rebuttals, grievances, and complaints. S1 stated that she was not responsible regarding Complainant’s being removed from the calendar invitations for the Executive Governance Board meetings. S1 indicated that Complainant was a co-chair for a committee that presented at Executive Governance Board meetings. S1 also indicated that Complainant was on the calendar invitation for the meetings and was receiving reminders about the meetings from December 2018, until at least May 2019. Complainant however attended only one meeting in January 2019. When she found out Complainant was not on the calendar invitation for the meetings, S1 stated that she reached out to the staff assistant to have that remedied. Regarding her reasonable accommodations, we note that Complainant has not alleged a claim of disability discrimination. S1 indicated that HR approved Complainant’s request for a sit and stand desk in her Castle Point office and it was installed in April 2019. In May 2019, HR informed S1 that Complainant also requested a petite ergonomic chair and complete office desk for Castle Point office, but she provided insufficient medical documentation to grant her request for additional equipment as her documentation only supported the sit and stand desk. S1 denied asking Complainant to work without her approved reasonable accommodation in place. S1 indicated that she had no involvement with Complainant’s reasonable accommodation requests. Regarding claim B.1, S1 indicated that the co-chair of the PFAC was originally held by the Patient Centered Care Coordinator. When that Coordinator retired, Complainant was temporarily assigned to the co-chair role. Later, when the VEO was hired and replaced the Patient Centered Care Coordinator, the VEO was properly assigned as the co-chair of the PFAC and Complainant was no longer assigned to that co-chair role. Regarding claim B.2, S1 indicated that Complainant was not disinvited by S1 or anyone else. S1 stated that S1 actually requested S3’s staff assistant to add Complainant to the calendar invite. Regarding claim B.4, the record indicates that Complainant was issued a reprimand dated May 17, 2019, for failure to follow leave requesting procedures and for failure to follow supervisory instruction. Specifically, S1 stated that Complainant did not inform S1 that she was going to be out sick on May 10, 2019; she did not attend a meeting on April 19, 2019, as instructed; and she did not report to duty at the Castle Point facility on April 30, 2019, as instructed. 2022000248 7 Regarding claim B.5, S1 indicated that S1 asked Complainant to delete the statement, i.e., that S3 was invited to the meeting but was unable to attend, from the minutes of the April 17, 2019 PFAC meeting. S3 informed S1 that S3 did not want to attend the meeting as it was too premature for her to attend before meeting with the Planetree members. Regarding claims B6 and B11, S1 indicated that upon S3’s request, Complainant was not invited to the Long-Term Care Institute meeting because Complainant had previously spoken inaccurately and negatively about the medical center and its staff. S1 indicated that she and Complainant had a disagreement regarding windows on the acute psychiatry unit, with S1 believing it a hazard and Complainant disagreeing. Complainant told S1 that it was not a hazard because the acute psychiatry unit at the Brooklyn Facility had its windows opened. S1 later learned that there was no acute psychiatry unit at the Brooklyn Facility and further the Manhattan unit did not have windows opened. Regarding claim B.7, S1 indicated that it was S1’s responsibility to approve invoices and S1 did not ask Complainant to approve an invoice; rather, S1 asked Complainant for Complainant’s input prior to approval because Complainant was more familiar with that contract. Regarding claim B.8, S1 indicated that all employees, including Complainant, were required to request to change their tour of duty or location, and S1 informed Complainant of such. Regarding claim B.9, S1 indicated that S1 did not scold Complainant; rather, S1 emailed her asking about her return time from her appointment because S1 did not receive a notification from an online time and attendance system that she entered her appointment time therein. As soon as S1 learned that Complainant entered the time in the system, S1 sent her an email to disregard S1’s prior email. Regarding claim B.10, S1 denied scolding Complainant as alleged. As her supervisor, stated S1, S1 instructed Complainant to send S1 Complainant’s action plan by close of business Thursdays, so S1 would have a time to review it prior to their weekly supervision meeting on Fridays. Regarding claim B.12, S1 denied mocking Complainant as alleged. S1 indicated that Complainant repeatedly used language and word choices that were pejorative and inappropriate referring to leadership. S1 also indicated that Complainant improperly assigned tasks to S3 to attend trainings and retreats on numerous occasions although she was instructed not to do so. Regarding claim B.13, S1 indicated that Complainant was issued a proposed removal on September 10, 2019, based on six charges. Specifically, S1 stated that Complainant misstated material facts when she incorrectly told S1 that: the inpatient psychiatric unit had working windows at the Brooklyn Facility; CLC Nurse Managers did not attend its taskforce meetings; she was unable to print materials and had computer issues; and she did not need a Public Affairs Officer’s approval before printing the brochures. 2022000248 8 S1 also stated that Complainant failed to take an appropriate action when the PFAC group verbally attacked her coworker; she failed to complete a worksheet related to Long-Term Care Institute survey; she was absent without authorization from 2:00 pm to 2:30 pm, on June 17, 2019; she invited a Congressional officer without authorization; and she failed to report to work at the Montrose Facility on September 10, 2019. S1 noted that she considered Complainant’s May 17, 2019 reprimand and her multiple misstatements on other occasions. The record indicates that the proposed removal was subsequently withdrawn, and no actual decision was made. Regarding claim B.14, S1 indicated that Complainant was not removed as co-chair of the Strategic Analytics for Improvement and Learning committee; rather, she was removed as chair of the sub-committee based on her repeated reports against nursing staff. S3 assigned the Nurse Managers as chairs of their respective sub-committees. Regarding claim B.15, S3 indicated that she instructed Complainant to stop soliciting the design of the new CLC facility without going through the Architect/Engineering Firm and stakeholders. S3 noted that Complainant did not keep S3 apprised of her activities and her solicitation with CLC residents and staff was premature. Regarding claim B.16, S1 denied assigning Complainant several tasks to degrade, humiliate, and make her feel unworthy. Rather, stated S1, Complainant was assigned to tasks, i.e., to work with a supervisor to decorate the facility for Halloween, to survey areas around the facility to ensure desks had name plates identifying them, to make note of whether entry to spaces denotes location, and to survey Veterans for their choice for television channel in reception areas, which were within the scope of her job. Regarding claim B.17, S2 indicated that negotiations between the lawyers for Veterans Affairs and the Cleveland Clinic were terminated because they could not come to an agreement to get the subject contract awarded. Thus, management decided not to further pursue the subject matter. S2 stated that it was her job to notify contracting staff of management’s decision terminating negotiations. Regarding claim B.18, S1 stated that Complainant requested and was granted her schedule changes five times in the last six months. S1 also stated that Complainant was abusing and taking advantage of S1’s lenience in changing her work schedules and that her frequent schedule changes became an administrative burden. S1 stated that she nevertheless approved Complainant’s request to change Complainant’s schedule to report to the Castle Point facility on Tuesdays but denied other changes. Regarding claim B.19, S1 denied Complainant’s request to attend the Planetree International Conference because her attendance was not necessary or appropriate since the medical center no longer pursued a Planetree Contract certification, 2022000248 9 Regarding claim B.20, S1 indicated that she denied Complainant’s request to attend the annual American Public Health Association conference because it was not submitted in a timely manner, i.e., within 30 days prior to the conference, and it was not related to her position. Regarding claim B.21, S1 indicated that due to Complainant’s frequent schedule changes, described in claim B.18, S1 offered Complainant to keep her current schedule, Monday - Friday, 9:00 am - 5:30 pm or change it to Monday - Friday, 8:00 am - 4:30 pm, to comply with other employees’ schedule in the office. After several discussions, on October 17, 2019, S1 informed Complainant that her schedule would be Monday - Friday, 8:00 am - 4:30 pm. S1 noted that one employee had his schedule changed temporarily to accommodate a program he was helping to facilitate. But, when the program ended, that employee’s schedule was changed back to his normal schedule, Monday - Friday, 8:00 am - 4:30 pm. S1 stated that all other similarly situated colleagues of Complainant had the same schedule: Monday - Friday, 8:00 am - 4:30 pm. Regarding claim B.22, S1 stated that she issued Complainant an Unacceptable rating for FY 2019 (highest to lowest rating, Outstanding, Excellent, Fully Successful, Minimally Satisfactory, and Unacceptable) because Complainant’s performance in all three critical elements, i.e., Planetree recognition/designation, patient centered care, and customer service, were unacceptable. Specifically, S1 indicated that Complainant failed to submit and update her appropriate action plans and submit monthly executive level summaries to be fully successful in her position as instructed in her mid-year performance, described in A.2. S1 also indicated that Complainant failed to: attend the Planetree strategy meeting in May 2019; to communicate Planetree’s goals, milestones, and accomplishments to all employees; to manage or lead the PFAC effectively; to communicate concerns regarding the PFAC meetings to leadership; and to convene the PFAC meetings in a satisfactory manner. Further, S1 stated that Complainant inappropriately informed CLC family members that staff may steal residents’ money if it was left with them; and she mislead the PFAC members that S3 was not attending the meeting when in fact S3 had not been invited. S1 indicated that Complainant’s job description was the same as before which mainly centered around implementing patient centered care, except deleting a Planetree certification since it was no longer pursued by the medical center. Complainant indicated that she subsequently appealed her FY2019 performance rating to S2, and it was changed to a Satisfactory rating. Regarding claim B.23, S1 stated that the Executive Leadership team decided to no longer pursue Planetree certification, as described above, and as a result a Planetree Coordinator was eliminated. The Agency issued its decision finding that Complainant failed to establish she was subjected to discrimination and a hostile work environment as alleged. Complainant appeals from the Agency’s decision. Complainant submits her brief to support her appeal reiterating her allegations against S1. 2022000248 10 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 (EEO MD-110), Chap. 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 Complainant 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 Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. 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 Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2022000248 11 To establish a claim of harassment, Complainant must establish that: (1) Complainant belongs to a statutorily protected class; (2) Complainant 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 Complainant’s 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 to the Agency. 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); see also Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). 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). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in her 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding her performance evaluation, Complainant was notified in her mid-year performance review that she needed improvement on all three critical elements in her performance plan. S1 further notified Complainant to update her action plans on a weekly basis and submit a monthly executive level summary. Since her performance did not improve and she failed to update appropriate action plans or submit an executive level summary, Complainant was issued an Unacceptable rating for FY2019, which was later changed to a Satisfactory rating. The Agency indicated that Complainant was granted a sit and stand desk but was not granted a petite ergonomic chair or additional equipment because she did not provide documentation to support the additional request. Here, Complainant is not alleging a claim of disability discrimination. Regarding the reprimand, S1 indicated that Complainant was issued a letter of reprimand on May 17, 2019, for failure to follow leave requesting procedures and for failure to follow supervisory instruction. S1 stated that Complainant failed to notify S1 of her sick leave and failed report to a meeting and at Castle Point facility as instructed. S1 indicated that Complainant was issued a proposed removal on September 10, 2019, for misstatement of material facts, conduct unbecoming, careless or negligent workmanship, unauthorized absence, failure to follow Agency policy, and reporting to out of assigned work area. 2022000248 12 Therein, S1 cited seven specifications when Complainant made misstatements, including her improper conduct at the PFAC, her absence without authorization, inviting Congressional officer without authorization, and her failure to report to work at the Montrose Facility as instructed. The record indicates that the proposed action was subsequently withdrawn, and no actual decision was made. Regarding schedule changes, S1 stated that she approved Complainant’s requests for schedule changes on several occasions, including her tour for Castle Point on Tuesdays. Since Complainant’s schedule changes caused an administrative burden, S1 denied Complainant’s additional schedule change request. Thus, on October 17, 2019, S1 decided Complainant’s schedule would be Monday - Friday, 8 am - 4:30 pm, which was the standard schedule for everyone else in the front office and in similar grades/positions. Regarding claim B.8, S1 denied allowing the identified Caucasian employee to change schedules without approval. We find no evidence that the identified Caucasian employee was allowed to change schedules without prior approval. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. S1 indicated that as a supervisor, it was her responsibilities to review and monitor Complainant’s work assignments. Regarding the AWOL claim, S1 acknowledged that she incorrectly charged Complainant AWOL on April 30, 2019, but it was later retracted and canceled. S1 denied sending Complainant threatening emails as alleged. S1 also indicated that she stopped sending/responding to text messages to Complainant upon her request not to do so. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. The Commission has held that agencies generally have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). Although Complainant disagreed with the severity of the assessed discipline, we note that the Commission cannot stand as a “super-personnel” department. See Janel B. v. Soc. Sec. Admn., EEOC Appeal No. 2019000126 (Aug. 12, 2020). Upon review, we find that Complainant failed to establish that she was subjected to discrimination as alleged. Regarding her claim of harassment, considering all the events, including dismissed claims, we find that Complainant failed to show that it was related to any protected basis of discrimination. 2022000248 13 The Commission has held that routine work assignments, instructions, admonishments, and addressing performance deficiencies do not rise to the level of harassment because they are common workplace occurrences. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130465 (Sept. 12, 2014); Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). We note that anti-discrimination statues are not civility codes designed to protect against the “ordinary tribulations” of the workplace. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 23 U.S. at 81. Upon review, we find that Complainant failed to make such showing here. It appears that Complainant did not work well with S1. Complainant did not agree with her supervisors’ business decisions and the manner they carried out the medical center’s mission. The tasks in claim B.16 may not have been desired by Complainant, but there is no evidence that they were assigned on a discriminatory basis. Based on a thorough review of the record, considering all statements submitted on appeal, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final 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). 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. 2022000248 14 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. 2022000248 15 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 14, 2023 Date