[Redacted], Kathy J., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 2021Appeal No. 2020004324 (E.E.O.C. Nov. 30, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathy J.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004324 Hearing No. 470-2018-00223X Agency No. 200H-0539-2016103047 DECISION On July 24, 2020, 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 July 8, 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. 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 a Lead Program Support Assistant, Primary Care, GS-0679-07, at the Agency’s VA Medical Center in Cincinnati, Ohio. Complainant asserted that “all was well” until she came under her immediate supervisor’s (S1) supervision. Complainant claimed that S1 immediately began excluding Complainant from interview panels and sent new hires to train without access to training tools. 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. 2020004324 2 Complainant testified that S1 asked Complainant to double-check S1’s work, train the supervisor, and be the Lead for 12 teams and several other areas. Complainant also had to cover when other clerks called off work. Complainant was assigned to a detail, and when she came back, she needed to schedule 300 appointments, and could not get assistance from others in the facility. Complainant asserted that S1 should have forced another Lead to do the things she was told to do. S1 also gave Complainant clinic cancellation responsibilities. Complainant argued that S1’s conduct amounted to unfair labor practices and caused her to be overwhelmed with work. Complainant further claimed that, on April 2, 2016, a coworker (CW1) responded to a change in how patients were scheduled by saying that Complainant “doesn’t want to do this. I feel like going out there and smacking her!” Complainant reported the statement to the police but asserted that nothing was done. S1 responded that she was contacted by the Agency’s police department and was told that it did not rise to the level of a police matter, but should be dealt with internally. The department had a fact-finding investigation, sorted out the matter, and contended that there were no further issues. Complainant offered as another example that on October 5, 2016, S1 instructed Complainant, and not any other employee, to contact a patient after S1 received a complaint from a Patient Advocate. S1 said that her instructions fell within Complainant’s job description. The Associate Chief of Staff, Complainant’s second-level supervisor (S2), testified that he was aware that Complainant felt overwhelmed and that he has pressed the Agency to fill vacancies throughout the department. S2 contended that Complainant’s supervisors, including S1, have offloaded some of Complainant’s responsibilities. S1 explained that the department was down to two or three clerks when they would normally have 14, and that she has adjusted the schedule of other staff members so that Complainant did not have to cover the front desk, thereby reducing Complainant’s obligations. S1 denied that Complainant was required to perform duties outside of her job description, and further asserted that Complainant refuses to hand off responsibilities or explain which parts of her duties were overwhelming her. Further, Complainant’s job description has always included covering when other clerks call out or are on vacation. S1 was also limited in who she could get to cover Complainant’s duties due to collective bargaining issues. Prior to S1, Complainant was supervised by another Agency manager (S1a). Complainant claimed that S1a was amenable to giving her a Special Advance for Performance Award. However, S1a left, and S1 became Complainant’s supervisor. When Complainant mentioned the issue to S1, S1 said she did not know what Complainant was talking about. The record includes email correspondence between Complainant and S1 regarding this incident, along with S1’s testimony. S1 explained that S1a and S1 were under the impression that Complainant was referring to an automatic step increase she would receive when she achieved a certain time in grade. After S1 clarified her position to Complainant, Complainant said that was not what she was referring to. 2020004324 3 S1 investigated the matter and determined that Complainant was referring to a Quality Step Increase (QSI), which is only approved “when an employee has made some type of major impact or contribution to the facility in a way that would benefit the facility after the employee has left.” S1 denied Complainant’s assertion that the self-evaluation Complainant submitted as part of her performance appraisal should be sufficient. S1 asserted that she told Complainant to submit additional information that would satisfy the QSI criteria, and S1 would pass it on, but Complainant never submitted the information. In response to Complainant’s allegation that Complainant was not being asked to serve on interview panels, S1 said that there is nothing that requires Complainant to conduct interviews, and as the direct supervisor, S1 is solely responsible for selecting the interview panel. Further, S1 was new to the process, so she asked managers above her to assist with the interviews to make sure she was conducting them properly. Complainant later learned, on February 2, 2017, that her work telephone number was identified as the point of contact for a new program. Complainant asserted that this occurred without her knowledge or consent. Complainant argued that listing her telephone number was unacceptable because they have “been short staffed for months.” S1 stated that she spoke with Complainant briefly about the new program and did not recall any resistance from Complainant at the time. S1 also said she was not aware that Complainant’s telephone number was published until she was notified of it through the investigation into the instant complaint. S1 then made sure that Complainant’s number was removed. On June 29, 2016, Complainant filed, and subsequently amended, an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), age (56), and in reprisal for filing the instant EEO complaint when: 1. from November 2013 to the present, Complainant notified her supervisors that she was being overwhelmed with tasks including continually correcting and retraining employees on policies and procedures and performing supervisory tasks outside of her job description; 2. from January 2013 to the present, Complainant has been detailed and assigned additional duties and responsibilities amounting to the work of five employees without being compensated; 3. on or about August 14, 2014, Complainant was not appointed to an interview panel for the selection of primary care clerks; 4. on or about February 2015, Complainant was not appointed to an interview panel for the selection of primary care clerks; 2020004324 4 5. on January 7, 2016, Complainant was not provided with a Special Advancement for Performance award that she had been led to believe would be pursued; 6. on March 2 and 30, 2016, Complainant was required to cover a former coworker’s Operation Iraqi Freedom/Operation Enduring Freedom clinics despite no one being assigned to cover Complainant’s clinics when she was on detail; 7. on March 25, 2016, Complainant was not provided with a Special Advancement for Performance award that she had been led to believe would be pursued; 8. on or about April 26, 2016, Complainant became aware that a co-worker was not informed about Complainant’s change in duty assignment involving the scheduling of new patients, which resulted in that co-worker remarking, “[Complainant doesn’t] want to do this. I feel like going out and smacking her!”; 9. on October 5, 2016, Complainant was instructed to contact a patient after a report by the Patient Advocate that the patient should have been contacted by a Coworker and that Coworker was not disciplined; and 10. on February 2, 2017, Complainant became aware that her immediate supervisor (S1) ordered that Complainant’s phone number be listed as the contact for a new program without Complainant’s knowledge or input, which increased her already excessive workload.2 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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that management subjected her to discrimination or reprisal as alleged. CONTENTIONS ON APPEAL On appeal, Complainant characterizes her complaint as a whistleblower complaint and argues that the Agency did not do a thorough investigation. Complainant reiterates her position that she should have received a promotion. 2 The Agency dismissed the alleged discrete claims occurring prior to February 19, 2016, as untimely raised with an EEO Counselor. The Agency considered the dismissed incidents as background evidence in support of Complainant’s overall hostile work environment claim. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s decision in that regard. 2020004324 5 ANALYSIS AND FINDINGS 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 Chapter 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”). As a preliminary matter, we note that on appeal Complainant protests the completeness of the Agency’s investigation. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. Complainant withdrew her request for a hearing, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions. As more fully detailed above, S1 adequately explains that most of Complainant’s concerns result from the fact that the Agency has been short-staffed and management is attempting to fill these vacancies. Further, S1 was not obligated to include Complainant in interview panels, and rather sought to include supervisors higher up in the chain of command to ensure that S1 conducted them appropriately. S1 also explained that Complainant did not demonstrate she was eligible for a QSI because she did not satisfy the criteria. S1 also took steps to remove Complainant’s telephone number from publication as the point of contact for the new program after it was inadvertently published. 2020004324 6 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. In this complaint, Complainant provides no evidence tending to demonstrate S1’s explanations are pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To establish a hostile work environment claim, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. 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). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Therefore, 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Accordingly, we find that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. 2020004324 7 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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. 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). 2020004324 8 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 November 30, 2021 Date Copy with citationCopy as parenthetical citation