Bettyann B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 22, 2020

2019002416 (E.E.O.C. Jul. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bettyann B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019002416 Agency No. 200J-0589-2017103208 DECISION 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 May 9, 2019 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. 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 Staff Podiatrist, GS- 14 at the Agency’s VA Medical Center in Kansas City, Missouri. Complainant was one of two staff podiatrists at the Medical Center. On May 16, 2017, Complainant received a memorandum from the Chief of Staff (S2) stating that, due to a Focused Professional Practice Evaluation (FPPE), there would be a reduction in her surgical/clinical privileges. Complainant believed that she was reported by a co-worker (CW1) for using a product in her surgeries that he regarded as too expensive, and that the FPPE also came about because of concerns she had left a screw in a patient during surgery. 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. 2019002416 2 In the memorandum, S2 explained that the Professional Standards Board (FSB) initiated a FPPE regarding Complainant on November 21, 2016, and that it was extended based on identified concerns related to substandard management and inadequate documentation. As a result, 100 percent of Complainant’s operative cases would be observed by external podiatrists until 10 cases were observed, 100 clinic cases would be observed by external podiatrists, and all discontinued or denied consults would be reviewed by the Surgery Service Chief with feedback given if the consult was not managed appropriately. Complainant took a week of leave around the Christmas holiday in 2016 and requested similar leave around Christmas in 2017. Complainant claimed that the Agency had not approved her request as of June 6, 2017. She then asked if it was going to be approved. Management subsequently denied Complainant’s request leave for two weeks but granted her one week of leave while granting CW1 two weeks of leave during the same period. S2 explained that CW1 complained about being denied leave during the Christmas holiday in 2016, and after consultation with Human Resources and the Union, the Agency decided to rotate between Complainant and CW1. Therefore, Complainant’s leave request during Christmas 2016 was granted and CW1’s leave was denied because Complainant was the senior employee. For Christmas 2017, CW1 was granted leave, but Complainant was approved for one week. On June 8, 2017, Complainant alleged the Administrative Officer told her that CW1 was promoted to Chief of Podiatry. Complainant claimed that she asked when the position was announced and why she was not notified so she could have competed. Complainant’s first-level supervisor (S1) and S2 denied that CW1 was promoted to the Chief of Podiatry. CW1 declared Complainant’s allegation “a fabrication.” Complainant explained that while on the FFPE (which she considered to be a performance improvement plan), she still needed to provide patient care but was required to have a proctor for her surgical procedures. Complainant claimed that she was forced to cancel some surgeries because she did not have a proctor. Complainant contended that S1 and S2 gave her directions that contravened the terms of the FPPE. S1 denied Complainant was treated differently, and averred that her job was to provide patient care. S2 noted that the FPPE for cause required an external observer for Complainant’s next 10 surgeries due to concerns related to substandard management and inadequate documentation. Similarly, S2 said that Complainant “was expected to perform her duties of her position as a staff podiatrist” and objected to the use of the word “forced.” Complainant claimed that beginning in May 2016, management has not offered her additional training. Complainant stated that until 2016, the Agency paid for her to go to training; however, she requested two trainings for 2017 and was denied both of them. S1 and S2 both denied awareness of any training that Complainant was denied. CW1 stated that they were required to maintain their competencies and the Agency always attempted to pay for one continuing education course a year. CW1 mentioned that he went to two conferences in 2016, but the Agency only paid for one. 2019002416 3 Complainant stated that in June 2017, she was forced to participate in an Administrative Investigative Board (AIB) regarding allegations of abuse of time. Complainant claimed that Union officials alleged that she was not doing her union duties when she was on administrative time granted for the Union. Complainant contended that she was doing her union duties, but the clinic had not logged her out and were paging her to the clinic at the same time. Complainant claimed that she received an ethics complaint against her by CW1 and one of the nurses for not responding to the page. S2 explained that Union leadership raised the concerns with Employee Relations/Labor Relations who discussed it with the Director. S2 noted that all individuals called to testify before the AIB are expected to participate. Complainant claimed that her application for the Surgical Skills training course on November 9- 12, 2017, was denied. Complainant explained that the Surgical Skills training would have helped her move past the FPPE. Complainant acknowledged that management told her that there was no funding available for the training. S1 explained that the department had a limited budget. On July 28, 2017 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity under when: 1. During December 2017, she was approved for only one week of annual leave for the Christmas holiday while the other staff podiatrist was given two weeks; 2. On May 16, 2017, her surgical/clinical privileges were reduced based on a Focused Professional Practice Evaluation (FPPE); 3. On June 6 and 8, 2017, management failed to approve her request for annual leave [regarding Complainant’s Christmas 2017 leave;] 4. On June 8, 2017, the other staff podiatrist was promoted to the position of Chief of Podiatry/Lead Podiatrist without allowing Complainant an opportunity to compete because the position was never announced; 5. Beginning May 17, 2017, through the present, Complainant was forced to provide patient care; 6. Beginning May 17, 2017, through the present, Management has not offered Complainant additional training; 7. Beginning May 17, 2017, through the present, Complainant must obtain a proctor before her surgeries can be scheduled; 8. On June 27, 2017, Complainant was forced to participate in an Administrative Investigative Board (AIB); and 2019002416 4 9. On November 6, 2017, Complainant was denied funding to attend a conference and a Surgical Skills course. At the conclusion of the investigation, the Agency provided Complainant a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) on February 3, 2018. Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f). On May 30, 2018, the Agency’s Office of Resolution Management (ORM) referred the matter for a final agency decision (FAD) to its Office of Employment Discrimination Complaint Adjudication (OEDCA). On June 6, 2018, however, ORM notified OEDCA to hold the FAD in abeyance after learning that Complainant wished to submit rebuttal documentation to be included in the report of investigation. After Complainant submitted the documentation, ORM re-referred the matter to OEDCA for a FAD on June 15, 2018. The Agency did not timely issue a FAD thereafter. After the Agency failed to timely issue the FAD, Complainant filed a Motion for Sanctions with the Commission on February 11, 2019, requesting default judgment as a sanction for the Agency’s failure to comply with the Commission’s regulations. The Agency did not issue the FAD until May 9, 2019. In the FAD, the Agency determined that management had articulated legitimate and nondiscriminatory reasons for its actions and found that Complainant failed to provide evidence to rebut these reasons. The Agency then concluded that Complainant failed to demonstrate she was subjected to a hostile work environment because her allegations did not constitute severe or pervasive conduct and because she did not demonstrate that management’s actions were because of her protected bases. The instant appeal followed. CONTENTIONS ON APPEAL In her initial February 11, 2019 Motion for Sanctions, which appears to have been prematurely docketed as the appeal in this matter, Complainant first argued that the Agency improperly referred her complaint to OEDCA for a FAD. Complainant contended that she was under the impression that after she submitted rebuttal documentation, she would be given another opportunity to request a hearing. Further, Complainant argued that the Agency failed to comply with the Commission’s regulations when it failed to timely issue a final decision. Accordingly, Complainant sought, as sanctions against the Agency, default judgment in her favor. On the same day the Agency issued its final decision, it filed an opposition to Complainant’s appeal and Motion for Sanctions. The Agency argued that the Commission did not have jurisdiction over the instant complaint until it issued its final decision on May 8, 2019. Therefore, the Agency requested that the Commission dismiss Complainant’s motion for sanctions for lack of jurisdiction. Alternatively, the Agency argued that Complainant’s Motion for Sanctions should be denied because it had good cause for its delay in issuing the final decision. 2019002416 5 The Agency explained that at the time it requested a final decision, OECDA’s workload had nearly doubled and the Agency needed to hire three additional attorneys and contract out the drafting of its final decisions. Further, the Agency contended that Complainant did not demonstrate she was prejudiced by the delay. On July 12, 2019, Complainant submitted a brief in support of her appeal and renewed her Motion for Sanctions. Complainant maintained that the Agency was obligated to issue a final decision within 60 days of the date her time frame for requesting a hearing expired, and failure to do so warranted default judgment in her favor. Further, Complainant argued that the Agency no longer had jurisdiction to issue a FAD once she filed the Motion for Sanctions. Complainant maintains that default judgment is an appropriate sanction along with other remedies. 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”). Complainant’s Motion for Sanctions As a preliminary matter, we decline to set aside the FAD and issue a default judgment in favor of Complainant as a sanction. Complainant is correct that the Agency’s FAD was untimely issued. As noted above, the FAD was not issued until May 8, 2019. In the past, the Commission has exercised its inherent authority to enforce its regulations by ordering sanctions in response to various types of violations. See Complainant v. Dep’t of Energy, EEOC Appeal No. 0120113823 (Nov. 17, 2015) (sanction warranted where agency failed to submit hearing transcripts on appeal); Complainant v. Dep’t of the Air Force, EEOC Appeal No. 0120110789 (Sept. 24, 2013) (sanction appropriate where agency failed to provide copy of hearing record, including hearing transcripts). Our sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). They are also corrective and provide equitable remedies to the wronged party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052. Several factors are considered in tailoring a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect 2019002416 6 on the integrity of the EEO process. Gray v. Dep’t of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052, “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant’s claims. Id. In this case, we find that the Agency did not act in a manner to warrant a default judgment sanction. Complainant has not made a showing that she was prejudiced by any Agency delay in issuing the final decision. While we will not impose a sanction in the present case since the delay in issuance of the FAD did not prejudice the Complainant or result in an unconscionable delay in justice, we do find the Agency’s failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. As a result, we will notify Federal Sector Programs (FSP) which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely issuance of its final agency decision.2 Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) she belongs to 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 her 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2 In addition, the Commission finds no support for Complainant’s argument that she should have been given another opportunity to request a hearing after she was allowed to supplement the record with her rebuttal documentation. 2019002416 7 Complainant asserted that based on her protected classes, management subjected her to a hostile work environment as evidenced by several incidents of what she believed to be discriminatory and retaliatory harassment. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. For example, with respect to claims (1) and (3), the record reflects that the Agency sought to ensure coverage during the Christmas holiday and concluded that Complainant and the other staff podiatrist would rotate coverage. CW1 received two weeks of leave because his entire leave request was denied the year before while Complainant’s request was granted. Regarding claims (2), (5), and (7), Complainant’s privileges were not reduced. Pursuant to the terms of the FPPE, she needed to have an observer (not a proctor) for her first 10 surgeries and to have an observer for 100 clinical cases. As to claim (4), S1, S2, and CW1 all denied that CW1 was promoted to Chief of Podiatry. As to claims (6) and (9), S1 explained that the Agency had a limited budget for conferences, but neither S1 nor S2 were aware of any additional training that Complainant requested and was denied. Finally, with respect to claim (8), S2 affirmed that the Medical Center Director chartered the AIB to investigate allegations of significant official time abuse by Complainant for her official union duties. Union leadership raised the concerns to Employee Relations/Labor Relations who then discussed it with the Director. S2 added that all employees called to testify before the AIB are expected to participate. The Commission finds that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant claimed that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not demonstrated that the Agency’s explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION 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. 2019002416 8 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2019002416 9 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 22, 2020 Date