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

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2021000116 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Winfred H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000116 Hearing No. 520-2020-00027X Agency No. 200H-0632-2018102396 DECISION On September 30, 2020, 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 September 4, 2020, 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 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Coordinator of Health Services Research at the Agency’s Northport VA Medical Center in Northport, New York. On April 4, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Ethiopian), color (Black), age (70), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: A. Since 2009 and continuing to January 11, 2018, the Associate Chief of Staff (ACOS) subjected her to a hostile work environment when he: 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. 2021000116 2 1. Failed to issue Complainant a proficiency report;2 2. Made degrading comments about Complainant and negatively referenced her EEO activity to Complainant’s coworkers; 3. Gradually took away the Complainant’s duties; 4. Removed Complainant from departmental activities; 5. Generally ignored her; and 6. Failed to provide Complainant with the written complaints that he received about her from the Research Compliance Officer (RCO); and B. Since January 11, 2018, Complainant has not received a copy of her 2017 proficiency rating. Complainant stated that she had previously filed an EEO complaint which was resolved by a settlement agreement in 2001. See Report of Investigation (ROI) at 86; Supplemental ROI at 7- 8. She further asserted that the ACOS had been gradually giving her responsibilities to the RCO, who is younger than she is, and generally ignoring Complainant. Complainant believed that, as a result of ACOS’s actions, she has been denied the opportunity for development, as well as recognition for her achievements by her peers. Further, ACOS’s treatment of her has fostered a disrespect of her by her coworkers. See ROI at 87-88. 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 (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case issued a decision without a hearing on September 4, 2020, granting in part and denying in part the Agency’s July 9, 2020 motion for a decision without a hearing. The AJ found that Complainant had not suffered an adverse employment action with respect to Claim B and therefore had not established a prima facie case. With respect to Claim A, the AJ found that Complainant did not establish that any of the alleged incidents of harassment were due to his national origin, color, or age. As for whether the Agency had subjected Complainant to retaliatory harassment, the AJ determined that material facts were in dispute. Consequently, the AJ denied the Agency’s motion for summary judgment with respect to the reprisal claim.3 2 This issue was also presented as a discrete incident of discrimination, listed as claim B. 3 The AJ conducted a hearing on the retaliatory harassment claim and issued a decision, which is the subject of a pending appeal, Appeal No. 2022001148. Therefore, Complainant’s reprisal claim is not presently before us and will not be addressed in the instant appeal. 2021000116 3 When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, finding that Complainant failed to prove that the Agency subjected her to discrimination on the basis of her national origin, color, or age, the decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. CONTENTIONS ON APPEAL Neither Complainant nor the Agency presented any arguments on appeal. ANALYSIS AND FINDINGS 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). We will first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 2021000116 4 An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not made any arguments to indicate that issues of material fact are in dispute with respect to her claims of discrimination based on her national origin, color, or age. We find that the AJ properly determined that there are no genuine issues of material fact in dispute and therefore, his issuance of a decision without a hearing was appropriate. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). With respect to Claim B, the ACOS’s failure to issue Complainant her 2017 proficiency rating, we agree with the Agency that Complainant has not establish a prima facie case. A Supervisory HR Specialist explained that a proficiency rating is intended to provide an employee with feedback regarding their performance. See Complainant’s Opposition to Summary Judgment, Ex. I at 15-16. She noted that there is no official requirement to document a supervisor’s feedback in a proficiency rating nor is there any official mechanism in place to ensure that supervisors provide such feedback to their employees. See Complainant’s Opposition to Summary Judgment, Ex. I at 19-20, 26-27. Therefore, there is no evidence that Complainant suffered any adverse, tangible employment action when ACOS failed to provide her with a documented proficiency rating. See Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (adverse action requires a tangible change in the duties or working conditions constituting a material employment disadvantage); Leming v. Dep’t of Transportation, EEOC Appeal No. 0120072692 (Aug. 7, 2007) (stating that for a claim to be actionable, there must be evidence that the alleged adverse employment action materially changed the terms and conditions of employment). Therefore, Complainant has not established a prima facie case with respect to Claim B.4 See Cheney v. Dep’t of the Air Force, EEOC Appeal No. 0120060647 (Sep. 7, 2007). 4 We note that the AJ correctly stated that the failure to issue a proficiency rating would, nevertheless, be considered as part of the hostile work environment claim. 2021000116 5 To the extent Complainant alleges that Claim A-6, the ACOS’s failure to provide Complainant with the written complaints he received about her from the RCO, is also a discrete incident, we find that Complainant has not establish a prima facie case. According to the ACOS, the incident involved Complainant going into the RCO’s office and yelling about a disagreement over a research study. See Complainant’s Opposition to Summary Judgment, Ex. C at 123-24. He stated that the incident was resolved, by asking Complainant not to yell at the RCO and to bring any future issues with coworkers to the attention of the internal boards who handle such matters. See Complainant’s Opposition to Summary Judgment, Ex. C at 128. The evidence in the record does not establish that Complainant suffered any tangible consequence, from either the complaints themselves or in not receiving a copy of the complaints, and therefore, Complainant has not established a prima facie case. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Complainant alleges that she was subjected to harassment due to her national origin, color, and age. In support, Complainant states that ACOS has been removing her responsibilities and assigning them to the RCO, a younger employee. However, other than the fact that RCO is younger, Complainant has not provided any supportive evidence. As for degrading comments, Complainant cites a comment made by ACOS, in 2003, when he first became Complainant’s supervisor. According to Complainant, ACOS referred to his “cotton farm” in Egypt and compared his “cotton farm” to the working relationship he wanted to have with Complainant. Complainant believed the comment indicated that ACOS wanted her to work as if she was on a slave plantation and considered the remark to be racist and demeaning. When asked by the EEO investigator, ACOS did not recall making any degrading comments. ROI at 96. While we acknowledge that reference to a “cotton farm” may well have been racially insensitive and inappropriate, we do not find that this isolated comment, made more than five years prior to the beginning of the alleged harassment, is sufficient to establish a nexus between Complainant’s national origin or color and the allegedly harassing incidents. As for removal from departmental activities, Complainant failed to describe the activities with any specificity nor the resulting harm. Based on the instant record, Complainant has failed to establish a nexus between the allegedly harassing events and her protected bases. 2021000116 6 Therefore, we find that Complainant has not met her burden in showing, by a preponderance of the evidence, that she was subjected to a hostile work environment on the bases of her national origin, color, or age. See Thaddeus G. v. Dep’t of Agriculture, EEOC Appeal No. 0120142925 (March 11, 2016). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we therefore AFFIRM the Agency’s final action finding no discrimination. 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). 2021000116 7 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. 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 April 20, 2022 Date