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

Equal Employment Opportunity Commission

Jul 11, 2022

Appeal No. 2021002415 (E.E.O.C. Jul. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxie S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002415 Hearing No. 490-2019-00149X Agency No. 2001-0614-2018105438 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 8, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Assistant, GS-7, at the Agency’s Memphis VA Medical Center (MVAMC) in Memphis, Tennessee. On October 26, 2018, Complainant filed an EEO complaint, which was subsequently amended, alleging that the Agency subjected her to a hostile work environment based on sex (female), disability (severe anxiety and depression), and in 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. 2021002415 2 1. On June 14, 2018 and July 2, 2018, the Complainant’s direct supervisor (S1A), Acting Chief, Office of Human Resources, GS-13, dangled two round gold Christmas ornaments in her face and stated, “You need to grow some balls”; 2. On November 2, 2018, S1A sent Complainant an email with an unprofessional and hostile tone; 3. On November 2, 2018, S1A assigned Complainant more work responsibilities than other similarly situated employees; 4. From December 4, 2018 to February 5, 2019, Complainant identified issues which were ignored by management and/or answered with one word; 5. In January 2019, when Complainant reported a prohibited personnel practice to her subsequent direct supervisor (S1B),2 Employee and Labor Relations Supervisor, GS-13, that occurred in October 2017, she was criticized for not raising the matter sooner; 6. On January 31, 2019, S1B stated that employees should not contact outside offices about dissatisfaction with the MVAMC; 7. On February 1, 2019, Complainant was not selected for a Human Resources Specialist position advertised under Vacancy Announcement Number RZ-19-JF- 10346664-T5-OCA; and 8. On February 4, 2019, S1B informed Complainant that her work area would be moved by February 15, 2019. 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. Complainant requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. In its final decision, the Agency found that, regarding claim 1, S1A admitted to inappropriate and unprofessional conduct when she held up the Christmas ornaments and commented that Complainant needed to “grow some balls,” but that she did so in an effort to tell Complainant and another employee present that they “needed to face difficult situations that challenged them in their job and not be sensitive to the response of others.” Complainant’s second-level supervisor (S2), Human Resources Officer, GS-14, subsequently issued disciplinary action to S1A, reprimanding her for “Inappropriate conduct” related to the incident. The Agency found that S1A’s comment about Complainant needing to “grow some balls” occurred at most two times several weeks apart. 2 S1A was Complainant’s direct supervisor until October 28, 2018, after which time S1B was her immediate supervisor, though the record indicates that Complainant still conferred with S1A about work-related issues even after S1A was no longer Complainant’s direct supervisor. 2021002415 3 Regarding claims 2 and 3, the Agency found that S1A’s email on the date in question was unremarkable and entirely professional and that S1A had not assigned Complainant additional duties. S1A’s email was in response to an email from Complainant sent to S1A and S1B where Complainant asked about being the point of contact (POC) for a particular program and indicated she was unable to assist employees with that program due to lack of training. S1A’s response to Complainant, on which S1B and two others were copied, suggested that the assignment was within Complainant’s job duties and that there was no expert who could train her, but that the Human Resources website should provide the necessary guidance. As to the allegation that she was assigned more work responsibilities than others, S1A denied doing so and provided Complainant’ position description showing that the program at issue in the email was squarely within Complainant’s job duties. S1B averred that he had investigated this issue when Complainant complained of it, and he found that Complainant actually had fewer duties than her coworker because she mismanaged her time. Regarding claims 4 and 5, Complainant refused to provide explanations in her affidavit about these incidents, writing for each affidavit question about these claims, “I emailed this exact same email to your office in my original complaint. This is your way of repet[i]tive submission of articles hoping that I will just give[ ]up. Please refer to the records that you have previously been emailed with my original complaint.” The record therefore does not specify the “issues” or “prohibited personnel practice” that Complainant allegedly raised with S1B. According to S1B, he looked into any issues that Complainant brought up with him and it was not uncommon for him to reply to emails with one word. He also denied criticizing Complainant for not addressing the prohibited personnel practice sooner and only asked her if she had reported it at the time, to which she replied that he had not. S1B then reported the incident and it was investigated. Regarding claim 6, Complainant also refused to provide any affidavit statements on this issue, giving the same response as above. S1B strongly denied that he ever told employees not to contact outside agencies/offices about issues within the MVAMC. He held a staff meeting on the date listed in the claim where he encouraged employees to come to him and/or another manager with office concerns if they felt comfortable doing so, but he did not discourage them from making complaints or contacting other agencies. Regarding Complainant’s nonselection in claim 7, S1B was the selecting official for the position at issue. The vacancy was advertised at the GS-7, GS-9, and GS-11 levels, and S1B received lists of eligible candidates for each of the three GS levels. Complainant applied only to the GS-9 position. S1B had the discretion to hire at any of the three levels, and he chose to select for the position at the lowest salary level possible, i.e., GS-7, and therefore only considered candidates who were eligible and had applied for the GS-7 level. Complainant was not included in this list of candidates because she only applied at the GS-9 level. Regarding claim 8, Complainant again provided no explanation in her affidavit for this allegation. The Agency found that S1B and S2 decided to move Complainant’s office because two new “developmental” Employee Labor Relations Specialists were recently hired. 2021002415 4 Complainant’s office had two desks and would therefore allow the two new hires to share an office so they could work and be trained together. The Agency found that as to the discrete incident in claim 7, Complainant failed to show that management’s legitimate, nondiscriminatory reason for selecting an applicant from the GS-7 list of eligible candidates was pretext for discrimination or retaliation. Beyond bare assertions that she was the most qualified for the job, Complainant failed to address the reason given by the Agency; nor did she deny that she had applied only at the GS-9 level. As to the other claims, the Agency concluded that they did not rise to the level of a hostile work environment and Complainant did not show that the actions taken were based on her protected bases. 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, 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”). 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 or reprisal. Regarding claims 7 and 8, we find that Complainant failed to show that any of the actions were motivated by discrimination or retaliation. Complainant applied for the Human Resources Specialist position at the GS-9 level only, even though the position was advertised under the GS-7 and GS-11 levels as well; based on business considerations, S1B decided to hire the position at the GS-7 level. Complainant had to leave her office, which had two desks, in order to allow two new Employee Labor Relations Specialists to work together more efficiently. 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. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail with regard to claims 7 and 8. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As to the remaining claims (claims 1 - 6), we find that Complainant failed to show the Agency subjected her to a hostile work environment. 2021002415 5 Regarding Complainant’s allegations that S1A twice made crude comments that Complainant should “grow some balls,” we find that such isolated incidents were not sufficiently severe or pervasive to establish a hostile work environment. Regarding the allegations that S1A sent Complainant a hostile email, that Complainant was assigned more duties than other employees, that S1B criticized Complainant for raising personnel issues and ignored her reporting of such issues, and that S1B discouraged employees from contacting outside offices about their workplace concerns, we find that the record contains no persuasive evidence that the events occurred as alleged. The record reflects that, aside from the two unprofessional comments made by S1A, for which she was reprimanded, the remaining allegations were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Even if the incidents occurred as alleged in claims 1 - 6, we find such incidents insufficiently severe to constitute a hostile work environment. We also find that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. Based on the foregoing, we find that Complainant failed to show by a preponderance of the evidence that the Agency’s actions were motivated by discrimination or retaliation 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). 2021002415 6 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. 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. 2021002415 7 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 11, 2022 Date