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

Equal Employment Opportunity Commission

Feb 7, 2023

Appeal No. 2021004237 (E.E.O.C. Feb. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maricela P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004237 Hearing No. 480-2021-00280X Agency No. 200P-0664-2020103196 DECISION On July 12, 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 June 16, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked in the Health Administrative Service as a GS-0679-06 Advanced Medical Support Assistant at the Agency’s Call Center in San Diego, California. Complainant resigned from her position on February 7, 2020. Complainant initiated contact with an EEO counselor on March 30, 2020. On May 18, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (physical), disability (association with a person with a disability) and 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. 2021004237 2 1. On April 10, 2019, the Agency failed to respond to Complainant’s internal transfer request; 2. On July 18, 2019, Complainant learned that she was not given a $500 bonus; 3. On December 29, 2019, Complainant learned that her Thrift Savings Plan (TSP) account loan repayment went into default after management failed to process her change of address properly; 4. On January 9, 2020, the Agency failed to address Complainant’s payroll issues; 5. On February 7, 2020, Complainant resigned; and 6. On March 26, 2020, management and HR staff failed to provide Complainant with forms requested to process her post-employment claim for benefits. The Agency accepted claim (6) as a timely raised discrete action. The Agency dismissed claims (1) through (5) as independently actionable claims for untimely EEO counselor contact but determined that these events should be considered as part of Complainant’s harassment claim. The Agency stated that the following matters raised by Complainant would be considered as background information: a. On May 21, 2019, management asked Complainant to “catch up” on Talent Management Training (TMS) online courses while at home on leave; b. On July 3, 2019, the Supervisor failed to reply to Complainant’s request for information regarding her leave account; c. On July 30, 2019, the Supervisor again failed to provide Complainant with the policy on leave without pay (LWOP) and absent without leave (AWOL) and told her that the policy is “by default”; d. On August 2, 2019, the HR Assistant did not provide Complainant with the reason she was charged with LWOP and told her no reason needs to be provided; e. On September 3, 2019, management failed to meet with Complainant or provide her with documentation about the denial of her leave request; f. On October 10-11, 2019, management ignored Complainant’s request for telework requirements and assistance; and g. From December 2019 through January 2020, Complainant was denied technical support regarding phone issues. The Agency dismissed a number of additional claims pursuant to 29 C.F.R. § 1614.107(a)(2) that were not brought to the attention of an EEO counselor and were not like or related to the matter raised with the EEO counselor. The Agency dismissed other claims pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim as collateral attacks on Family and Medical Leave Act (FMLA) leave and workers’ compensation determinations that were outside of the EEOC’s jurisdiction. Finally, the Agency dismissed a claim that the Agency violated the Union Master Agreement pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. 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). 2021004237 3 Complainant timely requested a hearing. The AJ issued a Notice of Intent to Issue Decision Without a Hearing. Both parties responded to the AJ’s Notice of Intent. In her response to the Notice of Intent, Complainant requested to amend her complaint to reinstate dismissed claims. The AJ subsequently issued a decision by summary judgment in favor of the Agency. In the decision, the AJ determined that the dismissed claims referenced by Complainant were not timely raised with an EEO counselor or were outside of the Commission’s jurisdiction. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 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). 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. (Aug. 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). On appeal, Complainant challenges the procedural dismissals, arguing that the Agency’s notice of partial acceptance improperly stated that she raised workers’ compensation issues when her injury was not work-related and improperly referred her to the Department of Labor regarding her FMLA-related claims when the Office of Personnel Management (OPM) administers FMLA for most federal employees. Upon review, we find that these claims concern Complainant’s requests for FMLA leave. Although the Agency incorrectly described Complainant’s injury as work-related and incorrectly stated that the Department of Labor, rather than OPM, was the proper forum to pursue matters related to FMLA, these claims fail to state a claim and are outside of the Commission’s jurisdiction, so the Agency properly dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(1). Similarly, although the Agency’s notice of partial acceptance referred Complainant to the National Labor Relations Board for her claim alleging a violation of the Union Master Agreement instead of the Federal Labor Relations Authority, the claim fails to state an EEO claim and was properly dismissed. Upon review, the Agency properly dismissed the remaining claims because they were not brought to the attention of an EEO counselor and were not like or related to the matter brought to the attention of the EEO counselor and for untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(1). 2021004237 4 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 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. Assuming for the purposes of summary judgment that management and HR failed to provide Complainant with the forms requested on March 26, 2020, there was no evidence that the two individuals contacted were aware of Complainant’s race, disability, and/or prior protected activity, as they had no working relationship with Complainant. The record reflects that Complainant willingly resigned, informing her supervisors and HR that she was resigning to pursue a career outside of government with less micromanagement. Regarding Complainant’s issues with TSP, payroll, and technical problems her phone; the record shows that the Agency directed Complainant to the appropriate resources to address her concerns. Although Complainant alleged that management and HR failed to provide her with information about her leave, LWOP, and AWOL; the record contains numerous emails from Supervisor, HR Assistant, and others providing Complainant with information about her leave and the leave policy. Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions, and Complainant did not establish pretext for discrimination. Complainant’s request for an internal transfer was denied and she was ineligible for the $500 bonus because of the number of unscheduled absences she had accrued. Complainant’s request for extended LWOP was not immediately approved because non-FMLA LWOP of 30 days or more is only granted at the discretion of the Director of the Agency’s San Diego Healthcare System. Complainant was not allowed to telework because the medical documentation from her physicians stated she was unable to work. The Agency asked Complainant to complete the TMS training while on leave so she would not lose computer access. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, including those not specifically addressed herein, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021004237 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. 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). 2021004237 6 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 February 7, 2023 Date