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

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2021004260 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alvera L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004260 Agency No. 200P-0664-2019104801 DECISION On August 31, 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 14, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical Support Assistant (MSA), GS-06, at the San Diego, California. On July 23, 2019, Complainant initiated EEO Counselor contact. On November 7, 2019, Complainant filed an EEO complaint, which was accepted and amended on November 25, 2019, and February 18, 2020, alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of age (58) and reprisal for prior protected EEO activity when2: 1. on May 16, 2018; October 2, 2018; February 15, 2019, Complainant’s requests for Yellow Belt Training were denied; 2. on August 6, 2018, Complainant was not selected for the Lead position in Mental Health; 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. 2 The Commission has re-ordered the claims for ease of reference. 2021004260 2 3. on or about November 2018, Complainant did not agree with the elements rated by management in her Fiscal Year (FY) 2018 evaluation; 4. on February 1, 2019, Complainant’s request for Emergent Leaders training was denied. 5. on May 13, 2019, Complainant’s request for Timekeeper training was denied; 6. on May 13, 2019, Complainant was not selected for an Acting Lead position in 2 North Mental Health; 7. on May 21, 2019, Complainant’s request to receive Acting Lead training duties in 2 North was denied; 8. on June 11, 2019, Complainant’s first line supervisor (Supervisor) laughed while telling her, “Old baby, you enjoy New Employee Orientation (NEO), so I am taking NEO away for 2 months;” 9. on June 11, 2019, Complainant asked the Supervisor when she was going to rotate back to the check-in window and was told, “Working on it”; 10. since June 11, 2019, the Supervisor removed Complainant’s NEO duties; 11. since June 11, 2019, Complainant requested and was not provided Mission Act training; 12. on June 21, 2019, Complainant’s application to attend Medical Support Assistant (MSA) Academy training was ignored and denied; 13. on July 23, 2019, Complainant was denied Timekeeper training; 14. on or about August 29, 2019, Complainant discovered that the Supervisor recommended denial of the Mental Health Lead position based on her prior EEO activity; 15. on unspecified dates, Complainant worked overtime without pay: 16. on or about November 25, 2019, Complainant was not provided an opportunity to apply for the position of Mental Health Lead GS-7; 17. on December 11, 2019, Complainant received a Fully Satisfactory rating. 18. on January 10, 2020, the Supervisor told Complainant that she was forgetful, and it may be caused by Alzheimer's or words to that effect. 2021004260 3 On January 27, 2020, the Agency issued Complainant a Notice of Partial Acceptance and Partial Dismissal. The Agency dismissed claims 1 through 7 on the grounds of untimely EEO counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2). However, the Agency noted that the events were sufficiently related to Complainant’s allegation of harassment and would be included for consideration regarding the hostile work environment claim. The remaining were accepted for investigation as well as Complainant’s request to amend the complaint by adding claim 16. On February 18, 2020, claims 17 and 18 were added and accepted for investigation. Both the January 27, 2020, and the February 18, 2020, notices (Notices) accepted the investigation on the bases of age and reprisal. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, 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. CONTENTIONS ON APPEAL On appeal, Complainant asserts that she has endured harassment and discrimination based on her age, sex, and national origin. Complainant contends that her the Supervisor subjected her to a multitude of illegal, unprofessional, and unethical actions. In a secondary appeal statement, Complainant requests a hearing before a United States Magistrate in a United States court. In response, the Agency requests that the Commission affirm its final decision. ANALYSIS AND FINDINGS We note on appeal that Complainant requested to have a hearing before a United States court. We note that Complainant previously chose to have a final Agency decision over submitting a hearing request with an EEOC AJ. Should Complainant wish to file a civil action in a United States District Court, she may do so. 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 Chap. 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”). 2021004260 4 Abandoned Basis During the informal and formal complaint process, Complainant alleged that she was subjected to a hostile work environment and discrimination based on her sex, age and in reprisal for her protected EEO activity. On January 27, 2020, and February 18, 2020, the Agency issued Complainant partial acceptance and partial dismissal of certain claims. The Notices framed the claims as discrimination on the bases of age and reprisal only. The Agency stated that if Complainant disagreed with the Agency’s acceptance and dismissal of her claims, she had seven- calendar days, after receipt of the letter, to challenge it. The Agency noted that if Complainant failed to contact the Agency, then it would be concluded that the accepted claims were properly identified. There is no record of Complainant contesting either of the Notices. Accordingly, while Complainant discusses the basis of sex on appeal, we find that since she did not contest the Agency’s Notices, she effectively abandoned those bases. Hershel B. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120142266 (Nov. 14, 2017) (determining that when complainant did not object to the dismissal of a claim with respect to certain bases, they had abandoned the bases). New Bases Raised for the First Time on Appeal Additionally, we note that for the first time on appeal, Complainant addresses basis that was not raised in her informal counseling or formal complaint. Specifically, that Complainant raised national origin-based discrimination in connection to claims. We note that absent a compelling reason, a complainant may not add a new basis on appeal. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000) (citing Wodjak v. Dep't of the Treasury, EEOC Appeal No. 01952240 (Mar. 27, 1997)); see also Jeanie P. v. U.S. Postal Serv., EEOC Appeal No. 2019004085 (Jan. 16, 2020). Since this basis was raised for the first time on appeal, we will not consider it here. Untimely EEO Counselor Contact - Claims 1 - 7 EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. 2021004260 5 Here, the Agency dismissed claims 1 through 7 on the grounds of untimely EEO counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2). Within claims 1 through 7, the latest incident occurred on May 21, 2019, and Complainant did not contact an EEO Counselor until July 23, 2019, beyond the 45-day time limit. Regarding these claims, Complainant has not asserted that she was unaware of the EEO complaint process, or the necessity for contacting an Agency EEO counselor within 45-day of the alleged discriminatory events. In sum, Complainant has not presented adequate justification, pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond forty-five days. Accordingly, we affirm the Agency’s dismissal of claims 1 through 7 on the grounds of untimely EEO Counselor contact as individually actionable claims. Disparate Treatment Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts. The final decision also correctly identified the legal standard for Complainant to prove that she was subjected to disparate treatment based on age and reprisal as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s legitimate, nondiscriminatory reasons for the various claims was pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 256 (1981). Assuming Complainant established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding the removal of duties alleged in claims 8 and 10, Complainant was informed that the Agency did not have the budgetary means to send her to the New Employee Orientation (NEO) training. Report of Investigation (ROI) at 282. He noted that this was the same for the Medical Support Assistant (MSA) training in claim 12. ROI at 293. The Supervisor also noted that NEO duties were not Complainant’s core responsibilities. Additionally, the Agency was short staffed, so even if there were funds to send Complainant, it would have impacted operations by sending her. ROI at 282. The Lead Medical Support Assistant (MSA) reiterated that staffing shortages impacted the decision to send Complainant. ROI at 277. Regarding the denial of the Mission Act Training in claim 11, the Supervisor stated that he did not deny Complainant’s request. Instead, he noted that the facility wanted all AMSAs to be trained last minute but that it was difficult coordinating everyone’s schedule. ROI at 291. The Supervisor stated that he reached out to Complainant to attempt scheduling the training but did not hear from her. Eventually, the Supervisor assigned Complainant to attend the Mission Act Training on September 6, 2019. ROI at 291-292. As for the Timekeeper training in claim 13, Complainant was not a lead MSA, and therefore not eligible for the course. ROI at 295. Regarding the denial of overtime pay in claim 15, the Supervisor asserted that Complainant has always been paid for any overtime worked. ROI at 283. Complainant acknowledged that she did not have dates for when she was allegedly not paid. ROI at 131. 2021004260 6 Concerning her evaluation in claim 17, the Supervisor stated that Complainant was rated as Fully Satisfactory because that reflected her work. ROI at 299; 366. The Supervisor stated that Complainant made consistent errors in her work, which impacted her rating. Id. The Lead MSA noted that Complainant also made frequent errors in her work. ROI at 277. As for the promotion alleged in claim 14, the Associate Chief of Staff for Mental Health stated there were eight applicants and the four with the highest scores from the four interviewers were invited for secondary interviews. ROI at 355. Complainant did not make that first round and ultimately not selected. ROI at 355. Complainant argued that she was clearly qualified for the position. Complainant can demonstrate pretext by showing that her qualifications for the position were plainly superior to the selectees. Hung P. v. Dep’t of Vet. Aff., EEOC Appeal No. 0120141721 (Dec. 3, 2015). We note that Complainant cannot demonstrate pretext simply based on her subjective assessment of her own qualifications. See Palmer N. v. Dep't of Def., EEOC Appeal No. 0120140070 (Mar. 18, 2016). We note that Complainant also argued that the selectees had less years of experience. The Commission has long held that a person's length of experience does not mean that they are better qualified. See Macready v. Dep’t of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002). Lastly, Complainant also argued that there might have been even some pre-selection involved. Even if this is true, we note that the Commission has previously determined that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Envt’l Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). Agencies may even pre-select a candidate as long as the pre- selection is not premised upon a prohibited basis. Michael R. v. Dep't of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). In this matter, even if the selectees were pre-selected, there is no indication that the decision to do so was based upon a prohibited basis. In claim 16, Complainant asserted that she was not provided with an opportunity to apply for the Mental Health position. Complainant argued that the Supervisor intentionally informed her of the position while she was out on leave. The record demonstrated that as a courtesy, the Supervisor emailed staff about the position that was publicly posted on USAJobs.gov. ROI at 298. He denied attempting to prevent her application. In these various claims, without proof of a demonstrably discriminatory motive, we will not second-guess the Agency's personnel decisions. see Chavez v. U.S. Postal Serv., EEOC Appeal No. 0120055246 (Jan. 5. 2007); see also Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1982) (noting that “the question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason [was discriminatory]”). Upon review, the Commission finds that Complainant has failed to show by a preponderance of the evidence that the Agency was motivated by discriminatory animus when it engaged in the alleged discriminatory actions raised in claims 8 and 10-17. In so concluding, we have also found that Complainant has failed to show that the reasons articulated by the Agency were pretextual and that she was subjected to disparate treatment. 2021004260 7 Hostile Work Environment Regarding the allegation of a hostile work environment, as to the claims addressed above, 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 animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As to the remaining claims, namely claims 1-7, 9, and 18, to establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class or engaged in prior protected activity; (2) she was subjected to unwelcome verbal or physical conduct; (3) the harassment complained of was based on the protected class or prior protected activity; (4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. With respect to element (5), an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). To prevail on a claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). Assuming, arguendo, that Complainant established parts 1 and 2 of a prima facie case of harassment, we find that based on the record Complainant has not met the requirements of part 3. In support of her claim, Complainant provided a variety of claims to demonstrate a hostile work environment, such as: being denied trainings (claims 1, 4, 5, 7), not agreeing with her performance evaluation (claim 3), not being selected for a variety of positions (claims 2, 6), not having her request addressed immediately (claim 9), and being told that she was forgetful (claim 18). Complainant provided numerous details in the investigation; however, we find that there is no evidence to causally connect such claims to Complainant’s protected basis or EEO activity. Furthermore, regarding part 4, we find that the examples provided, taken individually or as whole, do not demonstrate evidence of a pervasively hostile work environment. What was clear from the record was a disagreement on how the Supervisor chose to manage. 2021004260 8 The Commission has long recognized that ordinary managerial and supervisory duties include monitoring subordinates, scheduling workload, evaluating performance, and providing job- related counsel, are all part of normal operational management. Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (June 16, 2017). Therefore, we conclude that Complainant failed to show that she was subjected to harassment 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 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. 2021004260 9 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. 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 January 31, 2023 Date