[Redacted], Juanita K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Jul 26, 2022

Appeal No. 2021002594 (E.E.O.C. Jul. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Juanita K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency. Appeal No. 2021002594 Agency No. 2003-0362-2019103073 DECISION On March 29, 2021, 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 3, 2021, 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 and ANALYSIS At the time of events giving rise to this complaint, Complainant worked as a Claims Assistant, GS 5 at the Agency’s VA Regional Office in Houston, Texas. On July 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Caucasian), sex (female), disability (physical and mental), and age (43) 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. 2021002594 2 1. On December 31, 2018, the Supervisory Veterans Service Representative, Coach (C1) denied the Complainant’s leave request after previously approving it; 2. On January 14, 2019, the Complainant became aware her medical information was uploaded on the shared “H” drive for any employee to access and remained available for one month; 3. On January 16, 2019, C1 accused the Complainant of abusing disability sick leave; 4. On January 17, 2019, the Supervisory Veterans Service Representative, Assistant Coach (AC) issued the Complainant a written counseling; 5. On January 29, 2019, C1 stated to the Complainant “you were to be terminated this morning in regard to the previous leave discussion…”; 6. On January 30 and February 26, 2019, C1 issued the Complainant written counselings and forced her to respond to the Wounded Warrior incident; 7. On February 22 and March 1, 2019, C1 denied the Complainant’s leave requests; 8. On March 12, 2019, C1 denied the Complainant’s annual leave, advance sick leave, or leave without pay request and charged her absent without leave (AWOL) for March 8, 11, and 12, 2019; 9. On March 26, 29, and April 1, 2019, C1 denied the Complainant’s annual/sick leave requests; 10. On March 29 and April 4, 2019, C1 issued the Complainant written counselings; 11. On April 4, 2019, C1 charged the Complainant AWOL for 15 minutes; 12. On April 4, 2019, the Complainant received notice of her termination during probationary status effective April 8, 2019.2 The Agency dismissed claims 1, 4, 6, and 7 as discrete incidents of discrimination on the grounds of untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2) but noted they were accepted as evidence of an ongoing hostile work environment. See Report of Investigation (ROI) at 48-51. The Agency also accepted claims 8, 9, 10, 11, and 12 as discrete acts. See id. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision found that, with respect to the discrete actions, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not submit any evidence to support her assertions of pretext. The decision also found that Complainant had not established that she was subjected to a hostile work environment because there was no evidence indicating that any of the alleged incidents were to any of her protected classes and because the incidents taken together were neither severe nor pervasive enough to constitute a hostile work environment. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2 In her affidavit, Complainant withdrew age as a basis. See Report of Investigation (ROI) at 136. 2021002594 3 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”). As an initial matter, we will briefly address the Agency’s dismissal of claims 1, 4, 6, and 7 as discrete acts of discrimination. 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. The most recent of the discrete acts occurred on March 1, 2019 and Complainant did not contact an EEO counselor concerning these incidents until April 19, 2019. Complainant has not presented any justification to delay or toll the time limit. We therefore find that the Agency properly dismissed the above claims for untimely counselor contact. Complainant also contends the Agency should be sanctioned for its delay in not issuing its decision in a timely manner, noting that the Agency took nearly 12 months to issue 180 its decision. We find that the delay was not unreasonable under the circumstances and sanctions are not warranted. See, e.g., Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (finding sanctions not warranted for a delay of approximately a year before the decision was issued). Contrary to Complainant’s argument on appeal, we find that the Agency’s decision accurately recounted the relevant material facts and correctly identified the legal standards to prove that Complainant was subjected to disparate treatment on the basis of her race, sex, or disability.3 Assuming arguendo that Complainant established a prima facie case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions and that Complainant has not established that the Agency’s reasons are a pretext for discrimination. 3 To the extent Complainant contends the record is incomplete, she has not specifically identified any relevant material facts which require additional investigation. Moreover, to the extent Complainant seeks to add a claim of reprisal to her case, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (April 22, 2004). 2021002594 4 The Assistant Veterans Service Center Manager (M1) explained that it is occasionally necessary to deny leave in order to ensure adequate coverage to serve veterans. See ROI at 198-99. He further stated that he received numerous complaints from the Veterans Services Offices concerning Complainant’s rude and unprofessional behavior. See ROI at 205. Complainant’s termination letter stated that she was being terminated due to unprofessional conduct, including engaging in a verbal altercation with the Veterans Service Officer, failure to follow supervisor’s instructions, and a failure to follow leave requesting procedures. See ROI at 320. While it is clear that Complainant disagrees with the Agency’s explanations, mere disagreement with an Agency’s actions does not establish pretext nor is there any evidence in the record to support her assertions of discriminatory animus on the part of either C1 or the AC. See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We further find that the Agency’s decision correctly identified the legal standards to prove that Complainant was subjected to a hostile work environment and correctly found that Complainant failed to establish that she was subjected to a hostile work environment as alleged. While it is clear that Complainant had issues with the C1’s and the AC’s management styles, there is no evidence in the record that this interpersonal conflict is due to any of Complainant’s protected bases. Moreover, we find that the incidents largely constitute common workplace occurrences, such as routine work assignments, instructions, and admonishments, which do not rise to the level of harassment. See Ashely S. v. U.S. Postal Serv., EEOC Appeal No. 0120162643 (Feb. 13, 2018). To the extent Complainant alleges that she suffered physical and emotional harms as a result of the Agency’s actions, we note that the Commission has long held that a harassment complaint is not converted into a cognizable claim merely because a complainant alleges physical and/or emotional injury. See Larotonda v. U.S. Postal Serv., EEOC Appeal No. 01933846 (Mar. 11, 1994); see also Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII’s purview.”). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that she was subjected to discrimination as alleged. 2021002594 5 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. 2021002594 6 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 July 26, 2022 Date