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

Equal Employment Opportunity Commission

Jul 22, 2021

Appeal No. 2020003066 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Petronila B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003066 Hearing No. 410-2016-00532X Agency No. 200I-0508-2015105363 DECISION On March 23, 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 February 19, 2020, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are whether: summary judgment was appropriate; and whether the Agency subjected Complainant to a hostile work environment and discrimination on the basis of sex and in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources (HR) Specialist, GS-11, at the Agency’s Atlanta VA Medical Center in Decatur, Georgia. 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. 2020003066 2 On November 19, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to hostile work environment harassment and discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 as evidenced by the following incidents: 1. From September 3, 2013 to October 16, 2015, the Agency failed to promote Complainant or otherwise compensate her for performing duties at the GS-12 pay rate; 2. From November 5, 2014 to October 16, 2015, Complainant was denied access to VA computers and equipment; 3. On November 5, 2014, Complainant was placed on administrative leave; 4. Between November 2014 and March 2015, Complainant was wrongfully charged with absence without leave (AWOL) and annual leave during Federal holidays, bereavement, and days she was on involuntary administrative absence; 5. On January 31, 2015 and in March 2016, Complainant was wrongfully charged with AWOL and annual leave during Federal holidays, bereavement, and days she was on involuntary administrative absence; 6. Complainant was advised that 2.5 hours of earned compensatory time had been forfeited; 7. On January 22, 2015, upon her return from extended absence, Complainant discovered that her office had been given to another HR Specialist. Complainant was placed in a side office and not allowed to participate in any HR activities; 8. From January 22, 2015 to February 25, 2015, Complainant was not given any work assignments and was denied access to VA computers; 9. On February 20, 2015, Complainant was issued a proposed removal notice and instructed to leave the building immediately; 10. On August 17, 2015, and on other dates, Agency officials gave negative job references about Complainant to potential employers; 11. Since October 6, 2015, Agency officials refused to return Complainant’s personal property; 12. On October 6, 2015, Agency officials refused to process Complainant’s performance award; 13. Complainant was not allowed to give an oral response to the proposed removal until October 13, 2015; 2020003066 3 14. On October 15, 2015, HR officials at the Medical Center in Decatur, Georgia, hindered Complainant’s transfer to the Medical Center in Orlando, Florida, by refusing to process Complainant’s transfer action in a timely manner; 15. As of October 15, 2015, the Agency did not honor its written promise to remove Complainant’s AWOL charges and correct her leave records; 16. On October 16, 2015, Complainant was constructively discharged when she was forced to resign after being advised of the decision to remove her from employment at the VA Medical Center in Decatur, Georgia; 17. On November 5, 2016, instead of processing Complainant’s resignation, Complainant’s leave record was posted as AWOL and/or LWOP; and 18. On or about November 12, 2015, after being advised that Complainant accepted a position at another VA facility and did not want her leave balance depleted, an HR Officer processed Complainant’s resignation and issued Complainant a lump sum payment for 254.5 hours of accrued annual leave. 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on February 7, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not provide a statement in support of her appeal, which the Agency notes in its opposition to Complainant’s appeal. The Agency further requests that the Commission affirm its final order, adopting and implementing the AJ’s order and decision in favor of the Agency. ANALYSIS AND FINDINGS Decision Without a Hearing The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 2020003066 4 In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. On appeal, Complainant has failed to point with sufficient specificity to particular evidence in the record that indicates material facts are in dispute. In her opposition to the Agency’s motion for summary judgment, Complainant argued that she presented sufficient rebuttal to the Agency’s articulated reasons to demonstrate that summary judgment was inappropriate. Complainant contended that in addition to establishing prima facie showings of reprisal and sex discrimination, summary judgment was not appropriate because the record revealed credibility concerns and conflicting statements. For example, Complainant asserts that witness testimony and documents support her allegations and refute the Agency’s explanations with respect to her work at the GS-12 level, AWOL charges, restoration of compensatory time and annual leave, office space, proposed removal, return of personal property, performance award, and resignation. Even if the incidents occurred as alleged, as discussed below, no reasonable finder of fact could find that Complainant established that she was subjected to discrimination on the basis of sex or in reprisal for protected activity. Similarly, Complainant has not identified a genuine issue of material fact. Accordingly, the AJ appropriately issued a decision without a hearing. Disparate Treatment and Harassment 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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 2020003066 5 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id. See also Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Here, we do not find that Complainant has established that the alleged conduct was based on her sex or in reprisal for protected activity. For example, regarding the disputed promotion, management officials explained that Complainant’s promotion was delayed pending the investigation into whether Complainant acted inappropriately regarding the hiring of her brothers. Moreover, the record indicates that Complainant reported that she was not the only employee with concerns over delayed promotions. The Agency explained that Complainant’s computer access was restricted, and she was placed on administrative leave pending the results of the investigation. Complainant was ultimately issued a proposed removal notice following the results of the investigation. The Agency charged Complainant with AWOL when she did not return to duty to work on a special project, but the charges were later rescinded. Agency Officials testified that the issues related to Complainant’s performance award and transfer paperwork were due to the pending removal action. As for Complainant’s allegation concerning a response to the proposed removal, the Agency asserted that scheduling conflicts caused a delay. Agency officials explained that Complainant’s personal belongings were not intentionally withheld and that employees were encouraged to remove their belongings during renovations. Although Complainant's work environment may not have been ideal, we do not find that it was hostile and/or abusive based on Complainant's protected classes. We note that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). 2020003066 6 Moreover, we note that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. We find that the complained of conduct did not have the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. 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 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. 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 2020003066 7 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. 2020003066 8 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 July 22, 2021 Date