[Redacted], Liza B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 30, 2022

Appeal No. 2022000045 (E.E.O.C. Mar. 30, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Liza B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022000045 Hearing No. 532-2019-00048X Agency No. 200H-0541-201800135 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a GS-0661-6 Pharmacy Technician in the Anti-Coagulation Clinic at the Wade Park VA Medical Center, Louis Stokes Cleveland VA Medical Center in Cleveland, Ohio. On February 6, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race (African American) and reprisal (prior protected EEO activity) when: (1) from 2012 to October 10, 2017, a Pharmacist (P1) and Pharmacy Technician (PT1) regularly directed offensive physical, verbal, and facial gestures towards Complainant; (2) in 2012, a Pharmacist (P2) threatened to cut Complainant’s throat; (3) from January to October 10, 2017, a Clinical Pharmacy Specialist (S1) failed to take corrective action to stop the threats and verbal abuse towards Complainant; (4) from January 2017 to October 10, 2017, S1 used past disciplinary actions Complainant received from a former supervisor to 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. 2022000045 2 threaten Complainant’s continued employment; (5) from April 2017 to June 2017, S1 changed Complainant’s Performance Improvement Plan (PIP) evaluation tasks on several occasions; (6) on June 1, 2017, Complainant was placed on a 90-day PIP; (7) on September 18, 2017 S1 issued Complainant a written counseling; (8) on September 18, 2017, Complainant was issued a Proposed Removal letter; and (9) on October 13, 2017, Complainant was removed from Federal Service.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that there was no evidence that the incidents were based on discriminatory or retaliatory animus. For example, Complainant alleged that she was expected to complete tasks that she was not trained for but failed to mention that the Agency provided her with two weeks of additional training beginning on June 1, 2017, and that she was afforded the opportunity to request additional training throughout the PIP period. The AJ found that Complainant was held to the same performance standard as all other employees in the Pharmacy Technician position and there was no evidence in the record to support that she was held to a higher standard than her peers. Additionally, Complainant was assigned two mentors during the PIP period who were available to assist her. The record established clearly that Complainant was not adequately meeting the performance standards and was therefore placed on the PIP. Notably, Complainant made mistakes in spelling and grammar, yet she believed such matters were not important, despite the performance standard requiring that prepared documents be grammatically and typographically correct. Furthermore, as to the alleged co-worker harassment, Complainant admitted that she never informed S1 about the alleged threats and verbal abuse. The AJ concluded that Complainant failed to show that any of the alleged conduct was based on discriminatory or retaliatory animus. Accordingly, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 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). 2 Complainant withdrew Claim 7. Additionally, Complainant’s removal action (Claims 8 and 9) was processed as a mixed-case complaint and addressed in a separate final agency decision. Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding her removal and the record reveals that on May 28, 2021, the MSPB issued an initial decision dismissing the appeal as untimely filed. Based on the foregoing, we find Complainant's removal claim is not currently before us. 2022000045 3 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 to produce evidence to support a finding that the agency was motivated by discriminatory or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, 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. 2022000045 4 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. 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. 2022000045 5 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 30, 2022 Date