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

Equal Employment Opportunity Commission

Aug 9, 2022

Appeal No. 2020004643 (E.E.O.C. Aug. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karleen R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004643 Agency No. 2001-0621-2018106471 DECISION On August 19, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 24, 2020 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Timekeeper, GS-5, in Nursing Service at the Agency’s Medical Center in Mountain Home, Tennessee. On October 26, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (56) when: 1. Since January 8, 2018, Complainant never received compensation in the form of 22 hours of annual leave or payment for 22 hours of annual leave; 2. On July 31, 2018, Complainant’s first-level supervisor refused to accept report of contact that indicated Complainant could not pre-post timecards; 3. On August 30, October 5, and October 12, 2018, Complainant was denied leave; 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. 2020004643 2 4. Since September 21, 2018, Complainant’s first-level supervisor failed to respond to Complainant’s Family Medical Leave Act (FMLA) documentation; 5. On September 21, 2018, Complainant’s second-level supervisor instructed Complainant to change an employee’s overtime hours which were already posted; 6. On September 27, 2018, Timekeepers were allowed to provide work coverage for each other while Complainant is not afforded the same opportunity; 7. Since September 27, 2018, Complainant was assigned more work than her colleagues; 8. On October 2, 2018, Complainant was accused of not communicating with Nurse Managers about timecard matters; 9. On October 5, 2018, Complainant was advised that her leave request would not be approved until she completed her work; 10. Effective October 12, 2018, Complainant was detailed to Medicine Service; 11. In response to Complainant’s repeated requests for an office with no traffic and quiet atmosphere, Complainant’s second-level supervisor told Complainant to wear headphones; and 12. On November 8, 2018, Complainant received an unacceptable performance rating for FY18.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Regarding claims 3, 10, and 12, which the Agency regarded as discrete acts of discrimination, the Agency found that management provide legitimate, nondiscriminatory explanations for their actions. For claim 3, management officials explained that the leave denials were based on who was already scheduled off; whether work had been completed; and the needs of the service. Regarding claim 10, Complainant was detailed to Medicine Service because Complainant had received numerous complaints that employees did not receive the correct pay. The detail allowed management officials to conduct a formal review of Complainant’s performance. 2 Complainant included an additional allegation based on reprisal for whistleblower activity. However, the Agency dismissed the allegation and basis for failure to state a claim, pursuant to 29 C.F.R. § 1614.107. Complainant did not contest the dismissal on appeal and therefore, this decision does not address the claim. 2020004643 3 With respect to claim 12, Agency officials explained that Complainant’s rating was due to failure of a technical element. Complainant’s supervisor stated that Complainant had more than two documented incidents of inaccurate work being performed. The Agency turned to pretext and determined that the record was devoid of evidence showing that management’s actions were taken because of Complainant’s sex or age. Moving to Complainant’s hostile work environment claim, the Agency found that the alleged incidents did not rise to the level of severe or pervasive actions necessary to constitute harassment. Further, Complainant failed to demonstrate by a preponderance of the evidence that the conduct at issue was based on her protected classes. Instead, the Agency found that the evidence indicated that the incidents occurred as a result of ordinary business practices of a supervisor and an employee on a variety of work-related matters. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 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”). Upon careful review of the Agency’s decision and the evidence of record, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to discrimination or harassment as alleged. Accordingly, we AFFIRM the Agency’s final decision. 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. 2020004643 4 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. 2020004643 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 August 9, 2022 Date