[Redacted], Hulda P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2021003034 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hulda P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021003034 Agency No. 200J-0537-2020104654 DECISION On April 20, 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 March 23, 2021, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 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 an Advanced Medical Support Assistant at the Agency’s Jesse Brown Medical Center in Chicago, Illinois. On August 3, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 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. 2021003034 2 1. On April 15, 2020, the Agency failed to provide her with a reasonable accommodation and the Agency did not provide her with a notification of management's decision to grant or deny her request for a reasonable accommodation; 2. From January 20, 2020, one of Complainant's first line supervisors (Acting Supervisor) continually body shamed her, and made disparaging remarks about her clothing; 3. On or around March 2020, Complainant was reassigned to a different work area; 4. On or around April 2020, the Acting Supervisor became aware that Complainant contacted her second-level supervisor (Section Chief), regarding her internal harassment complaint, and made a comment to the effect of "Complainant does not have to tell on her"; 5. On June 10, 2020, during a staff meeting, the Acting Supervisor stood over Complainant and made her feel intimidated while speaking to staff members about the dress code; 6. On June 22, 2020, one of Complainant's coworkers (Coworker) stated, "an EEO complaint has been filed against management" without naming Complainant, and "now people must watch what they say around here because we have some tricks"; and 7. On July 10, 2020, the Section Chief moved Complainant's seat to the Fast Track area. 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 Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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”). 2021003034 3 Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant facts. The Agency’s decision also correctly identified the legal standard for Complainant to prove that she was subjected to a hostile work environment, as well as disability and reprisal discrimination. Concerning her allegations of disparate treatment discrimination, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Concerning her allegations of a hostile work environment, we note that Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993) is controlling. Both on appeal and in the FAD, the Agency has considered all of the circumstances and found that there was no discriminatory intent regarding Complainants treatment. The record does not show that Complainant was subject to harassment or discrimination, nor is there additional evidence on appeal which would support such a contention. Specifically, in regard to claim 6, statements made by Coworker, the Commission has held that the actions of a supervisor may be per se reprisal when the supervisor intimidates an employee and interferes with the employee's EEO activity in any manner. See Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep’t of the Army, EEOC Request No. 05920778 (June 4, 1993). While the record confirms that the statement was made, the statement was made by a fellow coworker. As such, we find that the statement is distinguishable, and find that it has not created the same kind of chilling effect as a comparable statement made by a supervisor. Moreover, on the whole, we do not find that the facts of the instant case establish unlawful retaliation. The Commission reiterates that Complainant bears the burden, at all times, to prove the Agency's actions were due to discriminatory animus. Rather, the Commission is an impartial arbiter of the facts held within the file. Upon review of the file, we have found no reason to invalidate the findings in the FAD. Based on a thorough review of the record, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, 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. 2021003034 4 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. 2021003034 5 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 September 6, 2022 Date