Dorothy F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 11, 2020

2019002609 (E.E.O.C. Aug. 11, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dorothy F.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019002609 Agency No. 200J-589C-2018101106 DECISION On March 19, 2019, 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 February 25, 2019 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. 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 Supervisory Social Worker, GS-0185-12, at the Agency’s Harry S. Truman VA Medical Center in Columbia, Missouri. On January 11, 2018, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her and subjected her to a hostile work environment on the basis of her age (60) when: 1. From August 2017 onward, Complainant performed the duties of a Supervisory Social Worker, GS-13, while being paid at a GS-12 level; 2. On October 27, 2018, Complainant received a rating of “Unacceptable” on her Fiscal Year 2017 performance evaluation; and 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. 2019002609 2 3. Beginning October 27, 2017, and continuing through the present, Complainant did not receive a mid-year performance evaluation; the Chief of Social Work made comments about not wanting to hire older workers because younger employees were easier to train and she referred to Complainant as too slow; Complainant was told she could not work past her tour of duty to complete work; and Complainant’s workload increased when she was tasked with developing and managing the Domestic Violence Program. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Complainant stated that she should have been paid for performing GS-13 duties, such as her collateral duty of supervising Domestic Violence Program (DVP) social workers. The Chief of Social Work (S2) asserted that Complainant was not the supervisory social worker for DVP. According to S2, Complainant was the Domestic Violence Coordinator, and that the duties of this position are graded as a GS-12. S2 indicated that Complainant’s first-line supervisor (S1) is the GS-13 supervisory social worker for DVP. Complainant’s Functional Statement states that Complainant was responsible for coordinating the DVP, not supervising domestic violence social workers. With respect to Complainant’s FY2017 “Unacceptable” performance rating, S1 asserted that Complainant failed to perform several critical assignments, including doing medical advanced directive screenings for patients, and she did not complete FY2017 competency evaluations for the employees whose job assignments she coordinated. S1 indicated that Complainant failed to regularly meet with these employees to review clinical notes and perform rounds. Further, Complainant was cited for not implementing the DVP as she only held one meeting for individuals needing domestic violence counseling. According to management, several efforts were undertaken to counsel Complainant beginning in October 2017, but her performance did not improve. Complainant claimed that S2 referred to her as too slow and difficult to train because she is older. However, S1 asserted that she never heard S2 speak badly about Complainant. A Clinical Social Worker who was Complainant’s witness stated that she never heard S2 utter disparaging remarks about Complainant due to her age or any other basis; however, she did state that she believed S2 intentionally hired younger workers. The Clinical Social Worker added that there was visible tension between S2 and Complainant. The record indicates that the Agency had 13 employees over the age of 40 among 23 employees in the Social Work Department. In its decision, the Agency determined that management articulated legitimate, nondiscriminatory reasons for its actions in claims (1-2). With regard to claim (1), the Agency asserted that Complainant was not performing duties above her GS-12 pay grade. The Agency maintained that Complainant was responsible for coordinating the DVP rather than supervising domestic violence social workers. In terms of claim (2), the Agency stated that Complainant received a rating of 2019002609 3 “Unacceptable” because she was failing in many critical performance areas. The Agency noted that Complainant was coached to improve her performance but failed to do so. The Agency determined that Complainant failed to establish pretext with respect to management’s explanation for its actions in claims (1-2). The Agency stated that there was no evidence that Complainant was performing duties outside the scope of her pay grade. The Agency further stated that Complainant was counseled on several occasions for her failure to perform several of her duties, but her performance did not improve. With respect to Complainant’s hostile work environment claim, the Agency found that the alleged incidents were insufficiently severe or pervasive to constitute a hostile work environment. Further, the Agency concluded that there was no evidence of discriminatory animus. As a result, the Agency determined that Complainant failed to establish that she was subjected to discrimination or a hostile work environment as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the investigation of her complaint was not completed within 180 days of the filing of her complaint and was also not completed within the 60-day extension period. According to Complainant, the final decision inaccurately characterized S2 as her second- line supervisor. Complainant states that S2 was her first-line supervisor. Complainant maintains that she was not supervised by the GS-13 Social Work Supervisor. Complainant states that only one of her requested six witnesses was interviewed. Complainant argues that she was placed at a disadvantage during the investigation when the Social Work Supervisor was interviewed as it was two management witnesses versus her one witness. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS Initially, we are mindful of Complainant’s concerns about the length of the investigation. EEO Regulation 29 C.F.R. § 1614.108(f) provides that agencies shall complete investigations of complaints within 180 days from the filing of the complaint, or where a complaint was amended, within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint. The record does not reveal any evidence of bad faith or misconduct by the Agency; however, we will take this opportunity to remind the Agency of its obligation to comply with the requirement to commence and complete the EEO investigation within 180 days of the date of the filing of the formal complaint. With respect to Complainant’s argument that the investigation was biased against her, we observe that both Complainant and one of her witnesses provided testimony. Our review of the record does not indicate that the investigator demonstrated bias against Complainant in how the investigation was conducted. Complainant failed to request a hearing, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. 2019002609 4 Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Finally, in terms of any mistakes in the final decision as to how management officials were identified, while Complainant may be correct that S2 as the Chief of Social Work was her first- line supervisor, that mistake by itself does not negate the validity of any determination in the final decision. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The prima facie inquiry may be dispensed with where the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Here, we find that the Agency articulated legitimate, nondiscriminatory reasons for the actions at issue in claims (1-2). In terms of claim (1), the Agency argued that Complainant was not performing duties above her GS-12 pay grade. The Agency asserted that Complainant was responsible for coordinating the DVP rather than supervising domestic violence social workers. With respect to claim (2), the Agency maintained that Complainant received a rating of “Unacceptable” because she was failing in many critical performance areas. The Agency stated that Complainant was coached to improve her performance but failed to do so. Complainant attempts to establish pretext as to claim (1) by arguing that the duties she performed were part of the GS-13 position description. Complainant asserted that such duties included development of the DVP, supervision of eight PACT Social Workers, and direct care duties for orthopedic patients. S2 explained that a GS-13 Supervisory Social Worker typically supervises a significant number of professional staff at the GS-12 grade, including advanced practice social workers and social worker program coordinators. S2 stated that also included is responsibility for the professional and administrative management of an area in a social work service, in a care line, or across multiple sites, e.g., multi-division facilities and CBOCs with a large number of supervisees at the GS-12 grade and below. 2019002609 5 S2 stated that a GS-13 Supervisory Social Worker typically also provides direct clinical services. With regard to a GS-12 Supervisory Social Worker, S2 stated that they typically have significant personnel management responsibilities for a small to medium size professional and nonprofessional staff, including support staff and professional staff at the GS-11 grade level and below. S2 stated that a GS-12 Supervisory Social Worker is responsible for the professional and administrative management of an area in a social work service, in a care line, or across multiple facilities. According to S2, a GS-12 Supervisory Social Worker also provides direct clinical services with or without program coordination responsibilities. S2 explained that the GS-13 Social Work Supervisor supervises three GS-12 social work staff and two GS-11 social work staff. S2 noted that the GS-12 Social Work Supervisor supervised three GS-11 PACT and four GS-11 acute care social workers. S2 stated that Complainant’s original collateral duties were going to be acute care and the SCI program but were modified to remove SCI and add Domestic Violence Coordinator, which is a GS-12 position. We find that the record does not support Complainant’s contention that she was performing GS-13 duties. Complainant was responsible for coordinating the DVP and that was considered part of the GS-12 position. We find that Complainant has failed to refute the Agency’s explanation for her being paid at a GS-12 level for performing the duties at issue. As for claim (2), Complainant contends that her “Unacceptable” performance rating was part of S2 laying the groundwork for her termination because S2 wanted to hire young Social Workers and she did not have control over her being hired since she had not yet assumed the position of Chief of Social Work. Complainant points out that in contrast to her FY2017 “Unacceptable” rating, she received at her new work location an “Outstanding” performance rating for FY2018. S2 explained that Complainant was rated “Unacceptable” for critical elements Lead Change, and Leading People, “Unacceptable” for Business Acumen and Building Coalitions, and “Fully Satisfactory” for Result Drive. S2 presented examples of deficient performance by Complainant with regard to each element where she received an “Unacceptable” rating. We find that Complainant has not presented persuasive evidence to establish that the Agency’s reasons for her overall “Unacceptable” performance rating were pretext intended to hide discriminatory motivation. 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). 2019002609 6 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 the alleged basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that the anti-discrimination statutes are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory animus. With regard to claim (3), Complainant acknowledged that she had been told that unless a crisis needed to be handled at the end of the day, she was to leave at 4:00 p.m. at the end of her shift. According to Complainant, it was often not practical to get authorization to work past 4:00 p.m. S2 stated that Complainant was told that if she needed to work past her tour of duty she would need to request Overtime/Comp Time in advance pursuant to Agency policy. According to S2, this is outlined in the facility’s tour of duty policy and in the Master Agreement. S2 asserted that Complainant did not have the workload to warrant needing Overtime/Comp Time as often as she wanted it. With respect to not receiving a mid-year performance evaluation, Complainant stated that S2 acknowledged that she erred as she admitted that she was not aware she had to issue a mid-year performance evaluation. According to Complainant, S2 informed her that her frequent emails to her summarizing the content of supervisory sessions with her could substitute for a mid-year performance evaluation. S2 explained that Complainant started on June 25, 2017, was placed on standards on July 14, 2017, and was on an Executive Career Field Performance Appraisal Program for 90 days prior to having her end-of-year review. S2 asserted that she met with Complainant on a regular basis to discuss her progress in her position as well as her performance, and that she was provided information on how to improve her performance. S2 stated that Complainant was sent weekly email updates on these discussions. As for S2 allegedly calling her too slow, Complainant states that the comment was made in early 2018 to the Administrative Investigative Board. 2019002609 7 Complainant argues that S2’s age-based bias was reflected in her not wanting to hire older workers. Complainant contends that S2 told a former employee that she was upset that an older veteran with veteran’s hiring preference was blocking other candidates and she was going to figure out how to get around it because she needed to hire younger people. Complainant maintains that S2 told the Clinical Social Worker that the veteran applicant was too old to learn a new system, S2 denied saying that Complainant is too slow or that she did not want to hire older workers. S2 asserted that instead she stated that Complainant lacked time management skills. The Clinical Social Worker could not recall any disparaging comments and/or age-based comments about Complainant from S2. Complainant stated that her workload increased when she was tasked with developing and managing the Domestic Violence Program. Complainant maintained that she never had sufficient time to develop the program in addition to her direct care and supervisory duties. S2 asserted that Complainant was assigned responsibility for the DVP upon her hiring and in nine months she held two meetings to discuss the program with no progress toward implementing the program. Upon review of Complainant’s arguments regarding the alleged incidents of harassment in claim (3) and those in claims (1-2), we find that they are not sufficient to refute the Agency’s legitimate, nondiscriminatory reasons for what occurred. As a result, the Commission finds that Complainant was not subjected to discrimination 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. 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. 2019002609 8 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. 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. 2019002609 9 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 August 11, 2020 Date