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

Equal Employment Opportunity Commission

Jun 21, 2022

Appeal No. 2021001247 (E.E.O.C. Jun. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arica C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001247 Agency No. 2001-0509-2018106399 DECISION On December 10, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decision concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Secretary, GS-0303-06, at the Agency’s Mental Health Service, Veteran Affairs Medical Center in Augusta, Georgia. On October 14, 2018, Complainant filed a formal complaint alleging that the Agency unlawfully retaliated against her for prior EEO activity when, from May 2018 and ongoing, she was subjected to harassment/a hostile work environment as evidenced by: 1. (a) solicited negative review comments concerning her; (b) reports of harassment to management with no response/inappropriate responses; (c) issued a proposed reprimand; (d) position description/position management/classification issues; (e) improprieties; (f) being excluded from emails; (g) unclear delineation of supervisory chain/remained under the supervision of a harassing supervisor; (h) assignment of 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. 2021001247 2 duties; (i) performance evaluation/self-assessment issues; and (j) inappropriate comments/gestures. 2. On August 21, 2018, Complainant was denied leave. 3. On September 5, 2018, Complainant was denied a reassignment. 4. On September 19, 2018, Complainant was issued a letter of counseling for abuse of sick leave. After the investigation, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In a final decision, the Agency found no unlawful retaliation was established based on the evidence developed during the investigation. The instant appeal followed. ANALYSIS AND FINDINGS 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 a protected basis - in this case, her prior EEO complaint. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). During the investigation, several responsible management officials articulated legitimate, non- discriminatory reasons for many of the actions Complainant proffered in support of her harassment claim. Regarding claim 1(a), Complainant alleged that on June 29, 2018, the Outpatient Mental Health Nurse Care (W1) informed her that S1 had asked her to write negative character statement about Complainant, and that he had asked other co-workers, including the Program Support Assistant (W2), to do the same with the intention of creating a file on Complainant.2 The Deputy Chief of Staff, also Complainant’s third-line supervisor (“S3”), stated that Complainant reported to her that Complainant had become aware that S1 was soliciting co- workers to write Complainant up. 2 The record reflects that S1 was no longer an Agency employee at the time of the investigation. 2021001247 3 S3 asked Complainant for specific details but her responses were vague and S3 had a sense that this discussion was making her uneasy. S3 stated that she met with S1 about Complainant’s allegations and he denied them. S3 found that Complainant did not provide her with any specific person or materials of evidence stating S1 took the actions which Complainant had claimed. Moreover, S3 spoke with S1’s supervisor and asked him to monitor the situation as far as work assignments based on that allegation. The Outpatient Mental Health Nurse Care (W1) stated that on two occasions, S1 asked her to write a memorandum reporting that Complainant was incompetent. She noted that S1 did not explain the reason, but he felt that Complainant was incompetent because she had not performed certain tasks. Furthermore, W1 informed S1 that she disagreed with his assertion that Complainant was incompetent. The Program Support Assistant (W2), however, asserted that she was never asked to make negative comments about Complainant or collect negative statements or comments about Complainant from other staff members. We acknowledge that there is conflicting testimony from W1 and W2 on the issue of whether S1 attempted solicitation of information from the parties regarding Complainant’s purported incompetence. We further note that S3’s attempts to obtain clarity and detail from Complainant were unsuccessful. Such contradictory testimonial evidence is at best, in equipoise, and as a result, Complainant fails to meet her burden of showing that the Agency had an unlawful motivation. Such contradictory testimonial evidence is, at best, in equipoise, resulting in Complainant failing to meet her burden of showing that the Agency had a retaliatory motivation. Brand v. Dep't of Agriculture., EEOC Appeal No. 0120102187 (Aug. 23, 2012). Regarding claim 1(b), Complainant stated that she reported S1 to Human Resources for harassment. A fact-finding investigation was established regarding her harassment allegations. Complainant stated that she became concerned that S3 did not interview any of the witnesses that she provided and only spoke with the Mental Health leadership. The record reflects that the result of the fact-finding did not substantiate Complainant’s allegations. Regarding claim 1(c), Complainant claimed that on September 19, 2018, one week before S1 left the Agency, she was issued a written counseling and a proposed reprimand. The record contains a copy of the Proposed Reprimand for Inappropriate Behavior and Failure to Follow Instructions. S1 stated that on September 5, 2018, a named employee sent an email requesting the “dial in” information for a “SAIL” meeting. However, he did not receive a response from Complainant, and three other employees tried contacting Complainant about the meeting. When S1 asked Complainant about the meeting, she stated there were issues with the room. According to S1, he stated that Complainant did not inform him or the Chief of Mental Health. Further, S1 stated that on July 13, 2018, Complainant sent an email to W2 assigning her to manage the calendar for the conference/group rooms. However, a named supervisor informed Complainant that she should not be assigning tasks to W2. 2021001247 4 Complainant responded to the supervisor stated that W2 has been doing the calendars since she arrived here. S1 placed Complainant on notice that her duty as a secretary is to schedule and manage the conference rooms. S1 stated that on June 29, 2018, Complainant sent an email to VISN 7 Position Management and Human Resources, Position Management, title Question regarding proposed Program Support Assistant Position Description. Complainant stated, “I wanted to inform you at the VISN level what was going on to it being submitted for approval.” S1 determined that it was inappropriate for Complainant to contact the VISN 7 Classifier about the Program Support Assistant Position Description. S1 stated that on September 11, 2018, he told Complainant to update the time-keeper memorandum and provide it to Payroll. When Complainant told S1 that a named employee can make the changes, S1 noted that he had assigned the task for Complainant. Further, S1 stated that on July 27, 2018, he instructed Complainant that her place of duty every morning is to attend the 7:30 a.m. “huddle” with him and the Chief, Mental Health Service. He stated that, “as a secretary of the service it is important that we meet daily so we all know what is due that day.” However, Complainant did not attend the huddle. Regarding claim 1(d), Complainant claimed that on June 13, 2019, S1 sent out a proposed position description (PD) that he was working on for the Program Support Assistant. Complainant noticed that a number of the duties mirrored her own PD and it appeared to Complainant as if S1 took her PD and put a different title on it. She brought this concern to S1’s attention and he informed her that when the new Program Support Assistants (PSAs) begin working, they would be taking over the on-call schedule for the physicians and Medical Officers of the Day. The Human Resource (HR) Specialist informed Complainant that the Mental Health had received some additional Full Time Equivalent (FTE) for PSAs and they were trying to get Position Descriptions in place for the subject positions. Furthermore, the HR Specialist did not believe the Mental Health department was trying to replace Complainant’s position because “they are two different jobs.” Regarding claim 1(e), Complainant stated that she was not aware of what is meant by this claim although S1 believed S1 used the term “improprieties” in the paperwork that he issued to her. Regarding claim 1(f), Complainant asserted that on August 10, 2018, S1 sent out an email to Mental Health stating a named doctor was going to be out for the day and asked for coverage from other providers. Complainant noted that she was not on the email. Thereafter, Complainant emailed S1 letting him know that she was not included in the email, even though Complainant was the secretary of Mental Health. Complainant claimed S1 responded that her only role as a secretary was to notify Agency management of the provider calling out and he left her out of his email because she does not have a role regarding medical coverage. 2021001247 5 Regarding claim 1(g), Complainant stated that after she filed her EEO complaint, she asked if she could change supervisors. She raised this issue with the union, EEO office, and S3 but they did not respond to her email. Complainant reported this issue to upper management and found it unethical that Supervisory Mechanical Engineer (SEM1), S3, and S4 failed to hold S1 accountable for his actions and allowed him to continue her on a daily basis. Regarding claim 1(h), Complainant asserted that from September 2018 to January 2019, there was never a clear line of what she was supposed to do, in contrast to what the PSAs were supposed to do, and that her duties and those of the PSAs were mixed. She noted S1 assigned things to her that were not addressed in her position description such as OPPEs,3 Focused Professional Practice Evaluation (FPPEs), and Pay-for-Performance. She believed these were acts of retaliation. Regarding claim 1(i), Complainant stated that on September 18, 2018, S1 sent her an email requesting her self-assessment for the close-out of her appraisal for FY 18, telling her to address each standard within each element in her Performance Plan for FY 18 that he gave her. She claimed the areas mentioned on her Performance Plan did not match the areas that were addressed in her position description. Complainant asserted that S1 did not provide her with her performance evaluation so she cannot determine what she should have been rated. Furthermore, Complainant stated that she did not report this matter to upper management because S1 and S2 were leaving and upper management did not care addressing her issues. Regarding claim 1(j), Complainant stated that when she saw S1 or S2 in the hallway, they would intentionally not speak to her or acknowledge her existence on a daily basis. Regarding claim 2, Complainant alleged that on August 21, 2018, she was denied leave. Specifically, Complainant requested leave through the leave system on August 21, 2018 for August 20, 2018. She explained she requested annual leave in lieu of sick leave because her sick leave balance was low due to harassment in the workplace. S1 denied Complainant’s leave and sent her an email denying it even though she explained why she was asking for annual leave in lieu of sick leave. Further, Complainant claimed S1 treated everyone else he supervised better than her. S3 stated, however, that Complainant did not report to her that S1 had denied her annual leave in lieu of sick leave on or around August 21, 2018. The Supervisory Mechanical Engineer (SME) explained that VA Handbook 5013 provides policies for requesting and approving and denying leave. She noted leave can be approved or denied by a supervisor in the chain of command. In addition, she stated that there are times when annual leave can be requested in lieu of sick leave. 3 This abbreviation is not identified in the record. 2021001247 6 Regarding claim 3, Complainant claimed that on September 5, 2018, she was denied a reassignment. S3 stated that she did not believe there was adequate justification for reassigning Complainant but told her that she could for jobs that were posted throughout the organization and on USA Jobs website. Regarding claim 4, Complainant claimed that on September 19, 2018, Complainant was issued a letter of counseling for abuse of sick leave. S1 stated that August 13, 20, and September 6, 2019, Complainant called in sick. S1 considered Complainant’s usage of sick leave to be an possible indication of sick leave abuse. S1 stated “it may become necessary to require you to provide medical documentation, faxed from her physician’s office, to support future absences for personnel illness, medical appointments or to care for an immediate family member if such use of leave continues.” The image which emerges from considering the totality of the record is that there were conflicts and tensions with S1’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that S1 was motivated by retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her prior EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that unlawful retaliation occurred. 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. 2021001247 7 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). 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. 2021001247 8 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 June 21, 2022 Date