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

Equal Employment Opportunity Commission

Jun 16, 2022

Appeal No. 2020004856 (E.E.O.C. Jun. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marva M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004856 Agency No. 2004-0688-2019101889 DECISION On September 1, 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 August 7, 2020, 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 a Supervisory Inventory Management Specialist at the Agency’s Medical Center in Washington, D.C. On March 25, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (mental-Post-Traumatic Stress Disorder) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On January 16, 2019, the Deputy Chief Supply Management, Complainant’s first-line supervisor (Supervisor) issued Complainant a Letter of Counseling for using leave under the Family and Medical Leave Act (FMLA); 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 2020004856 2. On January 30, 2019, Complainant became aware that management contacted her employee and requested the employee to submit a Schedule A Letter to be selected for Complainant’s position; 3. On January 30, 2019, management denied Complainant’s FMLA request; 4. On February 4, 2019, management denied Complainant’s sick leave request; 5. On February 5, 2019, Complainant was issued a letter of counseling for using excessive FMLA; 6. On February 6, 2019, after the Veterans Center Service Manager (Manager) attempted to deny Complainant FMLA, Complainant met with human resources; 7. On February 19, 2019, Complainant became aware her time sheet was not certified and she had not received her paycheck; 8. On March 14, 2019, management removed Complainant from her current office; and 9. On October 7, 2019, Complainant submitted her resignation in lieu of termination. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision (FAD) 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. In its decision, the Agency analyzed Complainant’s allegations under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Agency determined that management had provided legitimate non-discriminatory reason for the alleged actions. We note that Complainant’s own identified witnesses and management denied awareness of the incident alleged in claim 2. Report of Investigation (ROI) at 188-89, 195, 155-56, and 859. Regarding claim 1, Supervisor issued Complainant a letter of counseling as a reminder to Complainant of management expectation of Complainant’s supervisory duties and her responsibilities and conduct. According to Supervisor, the letter itself was not due to Complainant’s FMLA request. ROI at 146-52. Regarding claim 3, Supervisor had no record of management denying Complainant’s FMLA request. Supervisor believed that Complainant’s allegation was related to her timecard which, according to him, had become very convoluted during this time. ROI at 158-59. Regarding claim 4, the record reflects that the timekeeper had trouble certifying Complainant’s timecard within applicable timeline because there were some issues with the timecard, but it was eventually approved for the time frame at issue. ROI at 161-62. 3 2020004856 As to claim 5, Supervisor denied issuing a letter or verbal counseling to Complainant at the time in question. Supervisor, however, stated that there were some discussions about the matter because there was confusion about Complainant’s FMLA documentation whether it was good for 360 days or whether it was only good for a certain amount of time that the doctor had mentioned. Supervisor denied that Complainant FMLA usage was excessive. ROI at 163-66. Regarding claim 7, Supervisor stated that prior to the meeting at issue, he verified with the Payroll Clerk Complainant’s account through the Agency payment system. According to Supervisor, the record showed that Complainant was paid for that timeframe, and for pay periods two and four as well. Supervisor stated that Complainant never confronted him regarding any discrepancies in her timecard. ROI at 168-69. According to the Timekeeper, Complainant did not timely submit her leave request, including before timecard submission thereby making it difficult to timely submit Complainant’s timesheet every pay period. ROI at 183-84. Turning to claim 8, the Chief of Service sent an email to Complainant on the day in question requesting that she move from her office to another office due to major renovation in the work area. According to Supervisor, Complainant rejected an alternative workspace offer, citing that it was inadequate office space even though it was explained to her that the move was temporary in nature. ROI at 170-71. Finally, the Agency addressed Complainant’s claims under the legal standard for harassment. The Agency concluded that Complainant’s allegations in claims 1, 3, 4, 5, 7, and 8 were insufficiently severe or persuasive to rise to the level of a hostile work environment given the Agency articulated legitimate, nondiscriminatory reasons for the alleged actions in those claims. As for the other claims, the Agency ultimately determined that Complainant could not prevail on her allegations because Complainant had not offered any probative evidence of a nexus between the alleged harassing events and her protected classes. According to the Agency, Complainant’s harassment claim focuses on incidents where she disagreed with management decisions but failed to show that such disagreement was sufficiently severe or pervasive to constitute an objectively hostile work environment. The Agency also found that Complainant was not forced to resign due to intolerable working conditions created by management officials. According to the Agency, she did not meet the “intolerable conditions” standard for constructive discharge which is higher than the “severe or pervasive” standard for a hostile work environment. On appeal, Complainant provides no substantive arguments as to why the Agency’s final decision is wrong. Rather, she simply asserts, without corroborating proof, that management subjected her to discrimination and retaliation by “pushing back” when they took the alleged actions after she requested to use leave under the FMLA. The Agency opposes the appeal and requests that the Commission affirm its final decision. 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 4 2020004856 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”). Having reviewed the 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. In reaching this conclusion, we note that Complainant has not offered any substantive arguments as to why the Agency erred in finding no discrimination or cited to evidence that she believes substantiates her allegations. The evidence indicates an initial lack of familiarity with the FMLA process on the part of Complainant’s immediate supervisory chain.2 However, we find that Complainant did not establish that the Agency’s actions constituted discrimination 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. 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). 2 To the extent Complainant contends that the Agency interfered with her rights under the FMLA, we note that the Commission generally has no jurisdiction over claims based on the FMLA. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012) (finding a claim challenging denial of FMLA rights to be a collateral attack on the FMLA process, which is regulated by the Department of Labor, and outside the jurisdiction of the EEOC). 5 2020004856 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. 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. 6 2020004856 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 June 16, 2022 Date