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

Equal Employment Opportunity Commission

Dec 21, 2022

Appeal No. 2022001672 (E.E.O.C. Dec. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ayesha W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001672 Agency No. 200J-0553-2020106380 DECISION On February 7, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 7, 2022 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. BACKGROUND During the relevant period, Complainant worked as a Staff Physician, VM-15, at the VA Detroit Healthcare System (VADHS), John D. Dingell VA Medical Center (VAMC) in Detroit, Michigan. On October 22, 2020, Complainant filed a formal EEO complaint alleging she was subjected to discrimination and/or unlawful retaliation. The Agency defined the complaint as consisting of the following issues: 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. 2022001672 2 1. Whether the Agency discriminated against Complainant by subjecting her to disparate treatment based on race (African American), sex (female), and in reprisal for prior EEO activity when: a. Since June 26, 2020, Complainant was denied a 10% pay increase for working midnights. b. Since June 26, 2020, Complainant’s supervisor, Associate Chief of Staff, Integrated Clinical Sciences (Supervisor) “falsified” Complainant’s timekeeping entries in the VA Time and Attendance System, and Complainant has been denied compensatory time. c. Since June 26, 2020, Complainant was denied a “one time modification to her “annual and sick leave conversion option.” 2. Whether the Agency discriminated against Complainant by subjecting her to hostile work environment harassment based on race (African American), sex (female), and reprisal for prior EEO activity in connection with the following incidents: • From October 2015 to June 25, 2020, Complainant was denied a 10% pay increase for working midnights. • From October 22, 2018 to June 25, 2020, Complainant’s timekeeping entries in VATAS were “falsified,” and Complainant was denied compensatory time. • Since March 2019, the supervisor held Complainant responsible for “charting” completed by other physicians, asked other physicians about how Complainant “signs[-]out to them,” actively solicited complaints about Complainant, falsely alleged that Complainant does not see patients in a timely manner, stated that Complainant has a “big mouth,” lied to and threatened to “fire” Complainant, and conducted Complainant’s performance evaluation in the presence of others. • From November 1, 2019 to June 25, 2020, Complainant has been denied a “one time modification” to her “annual and sick leave conversion option.” • On September 2, 2020, the Supervisor made “threats” regarding Complainant’s employment after consulting with individuals in the facility’s EEO office. 2022001672 3 • On an unspecified date, the Supervisor “expressed displeasure” after being questioned about various decisions and instructions regarding work-related matters. After its 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 (EEOC or Commission) Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision on January 7, 2022, pursuant to 29 C.F.R. 1614.110(b), finding no discrimination or unlawful retaliation was established. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or 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, non-discriminatory reason for its actions. See Texas Department of Community 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, nondiscriminatory reasons for the disputed actions relating to disparate treatment. 2022001672 4 Complainant was the only full-time physician in the Emergency Department who strictly worked the midnight shift. She worked four 10-hour shifts per week, Monday through Thursday. Complainant did not rotate schedules and did not work weekends or days. Regarding claim 1.a, the Supervisor stated that all Agency physicians have not been granted a 10% increase in pay for working shifts. The Supervisory Human Resources Specialist explained that current statutory authorities do not provide additional pay for Agency physicians for work performed on a legal holiday, during a crisis (i.e. hazard pay), and on a Saturday or Sunday, at night, on “overtime,” or for “on-call” duty. In addition, the Supervisory Human Resources Specialist stated that full-time physicians are employed on the basis of availability for duty 24 hours a day, seven days a week, and have historically been “daily rate” employees under Title 38 as noted above. Regarding claim 1.b., the Supervisor denied he “falsified” Complainant’s time entries resulting in Complainant being denied compensatory time. In an email dated December 6, 2018, Complainant requested “time owed for tour[-]of[-duty coverage.” In response, the Supervisor stated that if Complainant worked on a holiday, she could receive eight hours of time off in lieu of that holiday. Regarding claim 1.c., the Supervisor stated that he requested that physicians who work a compressed schedule ask for their leave in days, not hours, notwithstanding a change in Agency policy. The Supervisor noted that if physicians working such a schedule were off for an entire week, they would be required to request five days of leave instead of only four days. The Supervisor stated that Complainant was the only physician who did not agree to comply with this policy. Thereafter, the Supervisor forwarded Complainant’s request for leave restoration to Human Resources. The Human Resources Center found that Complainant’s time and attendance records reflected that she works four 10-hour shifts per week, Monday through Thursday. As a result, the conversion rate of Complainant’s leave was based on “eight hours per one day of annual leave and eight hours per one day of sick leave.” The record evidence reflects that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered for claims 1.a, 1.b. and claim 1.c. were a pretext designed to mask a discriminatory or retaliatory motivation. The weight of the evidence shows that the policies and practices Complainant challenged have been applied uniformly to all similarly situated physicians. Harassment/Hostile Work Environment: Claims 1 - 9 To prove her harassment/hostile work environment 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 race, sex or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 2022001672 5 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). We note that claims 1.a., 1.b. and 1.c. have been discussed above and have been determined not to constitute actions against Complainant motivated by discriminatory or retaliatory animus. Without proof of an unlawful motive, these allegations cannot be considered as part of Complainant’s overall harassment claim. Regarding Complainant’s remaining harassment allegations, the image which emerges from considering the totality of the record is that there were conflicts and tensions with the Supervisor’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 their protected bases. Here, the preponderance of the evidence does not establish that the Supervisor was motivated by discriminatory or 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 protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). In reaching this conclusion, we take particular note of the matter relating to purported “threats” leveled at Complainant following discussion with EEO officials. Specifically, Complainant claimed that the Supervisor received several complaints from other physicians because she had given them a “difficult time” accepting the “sign[-]out” and as a result they were threatening to quit. However, the Supervisor denied stating that these individuals threatened to quit based on Complainant’s alleged conduct. Regardless, we find nothing in the record supporting a determination of threats made as a result of Complainant’s pursuit of the EEO complaint process, and Complainant is silent on this matter, as well as the other claims, on appeal. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 2022001672 6 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). 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). 2022001672 7 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 December 21, 2022 Date