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

Equal Employment Opportunity Commission

Aug 10, 2022

Appeal Nos. 2021002612, 2022000949 (E.E.O.C. Aug. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joanna V.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal Nos. 2021002612 2022000949 Hearing Nos. 420-2019-00020X 420-2019-00074X 420-2020-00190X Agency Nos. 200I-VI01-2018101483 200I-VI07-2018103452 200I-0619-2019103926 DECISION Complainant filed two appeals with the Equal Employment Opportunity Commission (EEOC or Commission),2 pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decisions issued on March 4, 2021, and November 3, 2021, concerning her equal employment opportunity (EEO) 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., 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. 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. 2 The Commission may, in its discretion, consolidate two or more complaints of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion to consolidate the captioned cases. 2021002612 & 2022000949 2 At the time of events giving rise to this complaint, Complainant worked as a Veterans Justice Outreach and Healthcare Re-entry Coordinator at the Agency’s Veterans Integrated Service Network Office in Columbus, Georgia. Complaint 1 (Agency Case No. 200I-VI01-2018101483) On January 31, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), color (Brown), and age (55) when: 1. on November 20, 2017, Complainant’s first-line supervisor (Supervisor) informed Complainant of her reassignment from Georgia to the Central Alabama Veterans Healthcare System. The Agency accepted the claim for investigation but dismissed Complainant’s allegation of “bullying in the workplace” for failure to state a claim. Report of Investigation (ROI) 1 at 33. Complaint 2 (Agency Case No. 200I-VI07- 2018103452) On May 3, 2018, Complainant filed another EEO complaint alleging that the Agency discriminated against her based on her race and disability (mental and physical) when: 2. since July 12, 2017, Complainant was denied reimbursement for the use of her personal vehicle; and 3. since November 15, 2017, Complainant was denied a government vehicle, while her coworkers and other employees were provided with vehicles. At the conclusion of the investigations, the Agency provided Complainant with copies of the ROIs and notices of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings. An AJ (AJ1) joined Complaints 1 and 2 for processing and scheduled an initial conference. On April 1, 2019, Complainant filed a Motion to Amend to include an allegation of discrimination when Complainant received a memorandum of a reassignment to Tuskegee, Alabama, on February 11, 2019. On May 23, 2019, AJ1 issued an Order on Initial Conference, Deadlines, and Record Completion, and noted that Complainant’s request to amend her complaint was granted. Complaint 3 (Agency Case No. 200I-0619-2019103926) On September 16, 2019, Complainant filed another EEO complaint alleging that the Agency subjected her to a hostile work environment based on her age and disability, and in reprisal for prior protected EEO activity, when: a) on January 4, 2019, Complainant’s position description occupational code was changed; 2021002612 & 2022000949 3 b) on or about January 31, 2019, Complainant discovered 22 electronic alterations on her previously certified and processed timesheets; c) effective February 11, 2019, Complainant was reassigned to Central Alabama Veterans Health Care System and an SF-50 affecting the reassignment was not added to her official electronical personnel record; d) on February 6, 2019, the Chief of Human Resources accused Complainant of not reporting to Social Work Service; e) since May 21, 2019, Complainant has been required to call into morning meetings and contact the Homeless Program Manager (HPM) or a designee when she leaves the facility; f) on May 31, 2019, HPM issued Complainant a position description changing her position from occupational series from 0101 to 0185; g) on May 31, 2019, HPM issued Complainant two Performance Appraisals containing an incorrect occupational code, position title, series and pay grade, with two different dates; and h) on September 29, 2019, Complainant was asked to provide a status report on a GPS unit that was missing in 2012. The Agency dismissed incident (c) as an untimely discrete claim and noted that it would remain only as part of the harassment claim. The Agency accepted incident (g) as a timely independent claim. The Agency also dismissed Complainant’s allegation related to a Cease and Desist letter due to lack of jurisdiction because the Veterans Preference Employment Act is administered by the Department of Labor and does not fall within the jurisdiction of EEO laws. ROI 3 at 39-40. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. On August 18, 2020, Complainant withdrew her hearing request for Complaints 1 and 2, and AJ1 remanded the complaints for a final decision. On November 17, 2020, Complainant withdrew her hearing request for Complaint 3, and another AJ (AJ2) immediately issued a dismissal order remanding the complaint back to the Agency to issue a final decision. AJ2 noted that part of Complaint 3 was allowed as an amendment for Complaint 1 and ordered the Agency to combine the complaints for a final decision. On March 4, 2021, the Agency issued a final decision for Complaints 1 and 2. The Agency found that management officials articulated legitimate, nondiscriminatory reasons for the actions. 2021002612 & 2022000949 4 Regarding claim 1, Supervisor averred that she had no role in Complainant’s reassignment, and that there was a national decision to send all Justice Staff back to Medical Centers. The Agency noted that the record contained a National Directive (U.S. Senate bill) supporting Supervisor’s assertion that the Agency needed to reassign staff. For claims 2 and 3, Supervisor testified that Complainant had to request use of a vehicle, which were rotated amongst staff who needed vehicles, and that reimbursement for use of a personal car required prior approval from the Medical Center. Supervisor noted that there was no special funding for a government-issued vehicle for Complainant’s position, and that there was a limited number of available vehicles that needed to be shared by the staff. The Agency found that Complainant provided no evidence to rebut the proffered reasons, and she failed to identify a similarly situated comparator who was treated more favorably. The Agency concluded that Complainant did not prove that the Agency subjected her to discrimination as alleged for Complaints 1 and 2. On November 11, 2021, the Agency issued a final decision for Complaint 3. For incident (g), the Agency found that HPM responded that, when Complainant informed him that her performance plan contained an incorrect job series, he issued a revised performance plan with the correct information. The Agency then found that Complainant only made bare assertions that management attempted to sneak an erroneous job series into her performance plan as a part of a scheme to replace her with a younger non-disabled employee, which was insufficient to show pretext for discrimination. For the remaining incidents, the Agency found that Complainant did not show that she was subjected to harassment because she did not present evidence of a causal connection between the complained of conduct and her membership in a protected class. In addition, the Agency determined that the actions were routine work-related occurrences that are insufficient to rise to the level of unlawful harassment. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged for Complaint 3. The instant appeals followed, and Complainant submitted briefs in support of her appeals, noting that the Agency did not comply with AJ2’s order to issue a single final decision for her three complaints. The Agency opposed the appeals. 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 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”). 2021002612 & 2022000949 5 As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See id., at Chap. 9, § IV.A.3. On appeal, Complainant did not contest any of the Agency’s procedural dismissals; as such, we will not address them in the instant decision. In addition, we note that Complainant correctly asserts that AJ2 ordered the Agency to issue a single final decision for the three complaints, and that it did not do so. However, we find that this was a harmless error. Regarding the merits of the claims, Complainant largely repeats her allegations on appeal and only offers speculation, without citing to any evidence in the records. For example, Complainant asserts that HPM’s mandate for Complainant to call into the team morning meetings was done “in retaliation to fabricate a reason to discipline her.” HPM responded that he sent Complainant a welcome email and informed her that the team conducts a brief conference call every morning. ROI 3 at 91. Complainant provided no evidence to support her contention that HPM’s notice of the daily morning calls for the team was in retaliation for her prior EEO activity. We note that the Agency dismissed incident (c) as an untimely discrete claim, and only included it as part of the overall harassment allegation, but that AJ1 granted Complainant’s request to include the February 11, 2019, reassignment as part of claim 1. However, when considering incident (c) as a discrete claim of disparate treatment, Complainant provided no arguments or evidence to raise an inference of discrimination for her February 11, 2019, reassignment. ROI 3 at 79. We find that Complainant did not establish a prima facie case of discrimination for incident (c); and as such, she did not prove that the Agency discriminated against her based on her age, race, or disability, or in reprisal for prior protected EEO activity, when the Agency reassigned her on February 11, 2019. Here, Complainant failed to produce evidence to connect any of the Agency’s actions to a protected category. Upon careful review of the Agency’s decisions and the evidence of record, and the contentions on appeal, including those not specifically addressed herein, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to discrimination or harassment as alleged. Accordingly, we AFFIRM the Agency’s final decisions. 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. 2021002612 & 2022000949 6 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. 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. 2021002612 & 2022000949 7 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 August 10, 2022 Date