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

Equal Employment Opportunity Commission

Mar 20, 2023

Appeal No. 2022000677 (E.E.O.C. Mar. 20, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Helen G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000677 Agency No. 2004-0512-2020-103598 DECISION On November 15, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 20, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Health Technician, GS-7, at the Agency’s VA Maryland Healthcare System in Baltimore, Maryland. On May 22, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on national origin (American) and in reprisal for prior EEO activity (prior EEO complaint identified as Agency No. 2004-0512-2019102856) when, on March 13, 2020, the Nurse Manager removed job duties (blood drawing) from Complainant because she was receiving too many complaints from her patients.2 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 record reflects that the Agency issued a decision on July 24, 2020, dismissing, for failure to state a claim pursuant to 29 C.F.R. Part 1614.107(a)(1), other matters raised in the complaint regarding Complainant’s computer being hacked (a claim also raised in another separate EEO complaint - see note 3 of this decision), an employee hiding labels, and Complainant being 2022000677 2 After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On August 11, 2020, a pre-hearing conference was scheduled with the parties by the AJ and was to be held on November 6, 2020. The AJ made arrangements and provided dial-in instructions that were emailed to the parties on or about August 12, 2020. On November 6, 2020, the Agency Counsel appeared for the ordered conference call. Complainant, however, failed to appear and participate in the conference call. Moreover, Complainant did not contact the EEOC Baltimore Field Office or the assigned AJ to explain her absence. On November 11, 2020, the AJ issued a Show Cause Order directing Complainant to respond in writing to address why she had failed to appear at the pre-hearing conference and why sanctions should not be imposed. The Show Cause was similarly emailed to Complainant. Complainant had until November 22, 2020, to respond, but she did not do so, or in any other way contact the AJ. On November 25, 2020, the AJ dismissed Complainant’s hearing request and remanded to the Agency for a final decision on the merits of the complaint based on the evidence developed during the investigation. On October 20, 2021, the Agency thereafter issued a final decision on the above referenced claim finding no discrimination or unlawful retaliation was established.3 The instant appeal followed. asked to repeat what another employee said to her. This dismissal was affirmed in the Agency’s final decision currently on appeal. We find nothing in the record to disturb the Agency’s dismissal of these additional allegations. 3 While not altogether clear from the record, it appears that another complaint (identified as Agency No. 2004-0512-2019-2856) may also have been pending before the AJ. It appears this complaint alleged, among other things, that an Agency official had “hacked” into Complainant’s personal cell phone and her work computer, as well as an issue with her pay. According to the Agency’s brief in the instant appeal, the hearing request on this complaint was also “closed” by the AJ following Complainant’s failure to appear at the pre-hearing conference or respond to the show cause order, but the AJ did not issue an order to the Agency to issue a decision on the merits of the complaint. Therefore, the Agency’s October 20, 2021 final decision, the subject of the instant appeal, only addresses the blood draw issue raised in Agency No. 2002-0512-2020- 103598. We do not know if the Agency ever issued a final decision on the other matter. 2022000677 3 ANALYSIS AND FINDINGS AJ’s Dismissal of Hearing The Commission's regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant's hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or course of EEO administrative hearings. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). The AJ's discretionary authority includes the power to impose sanctions upon a party that fails to comply with the AJ's orders. Id. When the a party fails without good cause shown to respond fully and in timely fashion to an order of an administrative judge, the AJ is authorized to issue an appropriate sanction. 29 C.F.R. § 1614.109(f)(3). The Commission has concluded that dismissal of a hearing request as a sanction is only appropriate in extreme circumstances such as willful disobedience of an AJ's orders or unjustifiable failure to respond to those orders. Joey B. v. U.S. Postal Serv., EEOC Appeal No. 2021004116 (Dec. 8, 2022); Clarine L. v. Dep't of Homeland Security, EEOC Appeal No. 2020004391 (Feb. 8, 2022). In recent cases where the Commission has affirmed the AJ's dismissal of a hearing request, the situation has typically involved multiple incidents of noncompliance, the complainant's failure to respond to the AJ's show cause order, or the lack of acts or omissions attributable to the AJ or the Agency that resulted in the complainant's noncompliance. See Melinda H. v. Dep't of Veterans Affairs, EEOC Appeal No. 2021004162 (Oct. 17, 2022). By contrast, in recent cases in which the Commission reversed the AJ's dismissal of a hearing request, we tend to find that there was a single incident of noncompliance, that the complainant timely responded to the AJ's show cause order, and that the noncompliance usually resulted from circumstances beyond the complainant's control, from an oversight that the complainant immediately sought to correct, or where the noncompliance resulted from an act or omission on the part of the AJ or the Agency. See Stuart M. v. Gen. Serv. Admin., EEOC Appeal No. 2021005010 (Nov. 21, 2022); Sean L. v. Dep't of the Air Force, EEOC Appeal No. 2020002537 (June 2, 2021), req. for recon. den. EEOC Request No. 2021003956 (Oct. 26, 2022). Applying these principles, we affirm the AJ’s decision to dismiss Complainant’s hearing request. We conclude that under the unique facts presented here, Complainant’s failure, without explanation, to appear at the pre-hearing conference scheduled by the AJ combined with her subsequent failure to respond to the AJ’s Show Cause Order was sufficient to justify the AJ’s decision to dismiss the hearing. We also note that, even on appeal, Complainant has not proffered any explanation for her failure to appear at the scheduled pre-hearing conference or respond to the show cause order. 2022000677 4 Merits of Complaint 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). Agency management articulated legitimate, non-discriminatory reasons for its actions, as more fully discussed below. The Chief Nurse (African American) addressed various complaints and concerns from Agency staff regarding Complainant’s performance drawing blood, which resulted in painful blood sticks, failed draws, and multiple failed attempts. Complainant was made aware of these complaints and specifically told that was the reason for eliminating blood draws from her duties. The record reflects that Complainant was not reassigned after her duties were changed, and she was not disciplined for any infraction. She continues to work on the same unit and perform all other duties in her official job description.4 The Associate Director (American) confirmed that the sole duty removed from Complainant was the assignment of drawing blood. She stated further that Complainant remains in her current job, with her current salary and grade, and that “nothing changed.” 4 According to Agency witnesses, on May 11, 2020, Complainant submitted a light duty request and, as a result, performs her other duties within the medical restrictions in that request. 2022000677 5 The Associate Director stated that the modification regarding drawing blood was due to complaints from the patients, patients’ families, and other medical providers. Beyond her bare assertations, Complainant failed to prove, by a preponderance of the evidence, that the legitimate reason for the modification to her duties proffered by management witnesses was actually a pretext designed to mask the true discriminatory or retaliatory motivation. 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. 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. 2022000677 6 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 March 20, 2023 Date