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

Equal Employment Opportunity Commission

Dec 7, 2021

Appeal No. 2020004108 (E.E.O.C. Dec. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scarlet G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004108 Agency No. 200P-0593-2018102699 DECISION On May 22, 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 April 24, 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 Medical Support Assistant, GS-0679-06, at the Southern Nevada VA Healthcare System (Southern Nevada VA) in Las Vegas, Nevada. She transferred to the Southern Nevada VA in April 2017 from another Agency facility. When she arrived, she informed the Call Center Supervisor, her first level supervisor, that management at her previous facility had approved her request for leave under the Family and Medical Leave Act (FMLA) and that she would continue to need FMLA leave. See Report of Investigation (ROI) at 183. By August 2017, Complainant had exhausted her FMLA leave balance. Id. at 70. 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. 2020004108 2 Beginning that month to December 2017, the Call Center Supervisor repeatedly changed Complainant’s requests for FMLA leave to either leave without pay (LWOP) or absent without leave (AWOL) because the Agency’s timekeeping system would not allow him to approve Complainant’s timecards containing FMLA leave requests with a zero balance. ROI at 70. In January 2018, the Call Center Supervisor marked Complainant as AWOL on five occasions for the same reason. Id. The Call Center Supervisor also marked Complainant as AWOL on February 1, 2018. Id. Believing that she had been treated improperly, Complainant requested union representation multiple times during meetings with the Call Center Supervisor and even tried to contact the EEO Facility Program Manager for assistance; however, the Call Center Supervisor allegedly denied her requests. ROI at 17, 30, 55, and 66-69. Complainant further claimed that the Call Center Supervisor followed her around the office, repeatedly ignored her, and revealed her FMLA status to other employees. Id. However, both the Call Center Supervisor and Section Chief, her second level supervisor, vehemently denied all of these allegations. Id. On May 2, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (physical) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. From August 21, 2017 to May 2, 2018, Complainant was prevented or denied the opportunity to contact the Union and EEO Facility Program Manager; the Call Center Supervisor spoke about her FMLA status in front of other employees; the Call Center Supervisor followed her around the office; the Call Center Supervisor denied her union representation at a meeting; she has been ignored by the Call Center Supervisor in her meeting requests; and no response from the Section Chief on the meeting request regarding issues with the Call Center Supervisor; 2. On multiple dates from August 21, 2017 to January 12, 2018, Complainant’s leave requests were changed from approved FMLA leave to LWOP or her request was marked AWOL; and 3. On January 17, 18, 19, 29, 31, 2018 and February 1, 2018, Complainant was charged AWOL. The Agency subsequently accepted claims 1 and 3 for investigation. However, the Agency dismissed claim 2 pursuant to 29 C.F.R. § 1614.107(a)(2) due to Complainant’s failure to timely raise it. In dismissing claim 2, the Agency informed Complainant that it would nevertheless consider Complainant’s underlying allegations as part of her overall hostile work environment claim. The Agency then commenced its investigation into the complaint. During the EEO investigation, the assigned EEO Investigator made several attempts to obtain an affidavit from Complainant; however, Complainant failed to submit her affidavit. 2020004108 3 Consequently, the EEO Investigator completed the investigation using information derived from Complainant’s informal and formal EEO complaint. 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). 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 pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination. Specifically, in finding no discrimination, the Agency determined that the Call Center Supervisor had legitimate, nondiscriminatory reasons for charging Complainant as AWOL on January 17, 18, 19, 29, 31, 2018 and February 1, 2018, namely that Complainant was indeed AWOL due to her failure to report to work and/or call in her absence. The Agency further emphasized that during that period, Complainant was not entitled to FMLA leave, as she had no FMLA leave remaining. The Agency ultimately found that Complainant could not demonstrate pretext with regard to this claim. As for claims 1 and 2, concerning Complainant’s hostile work environment claim, the Agency concluded that the alleged actions were not sufficiently severe or pervasive to constitute a hostile work environment. This appeal followed. CONTENTIONS ON APPEAL Complainant did not submit any contentions in support of her appeal. The Agency requests that the Commission affirm its final decision. STANDARD OF REVIEW 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 (EEO MD-110), 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”). 2020004108 4 ANALYSIS AND FINDINGS At the outset, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. As Complainant has not specifically challenged the Agency’s dismissal of claim 2 for untimely EEO contact, we will not review the propriety of the Agency’s dismissal. See EEO MD-110, Chap. 9, § IV.A. (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.”). However, like the Agency, we will review claim 2, as part of Complainant’s hostile work environment claim. We turn now to the merits of the complaint. Disparate Treatment - Claim 3 For claims of disparate treatment under the Rehabilitation Act, where the agency denies that its decisions were motivated by a complainant’s disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) she was an individual with a disability; (2) she was qualified for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for the adverse employment action. In order to satisfy his burden of proof, Complainant must then demonstrate by a preponderance of the evidence that the Agency’s proffered reason was a pretext for discrimination. Id. Assuming arguendo that Complainant has established a prima facie case of discrimination on the alleged bases, we find that the Agency has articulated a legitimate, nondiscriminatory reason for taking the alleged actions. As reflected in the ROI, the Call Center Supervisor maintained that he charged Complainant as AWOL on the alleged dates in January and February 2018, because Complainant had expended her FMLA leave and was not entitled to FMLA. ROI at 71. Upon review, as Complainant failed to provide any affidavit regarding pretext, we find no evidence of pretext with regard to claim 3. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second- guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that she was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. 2020004108 5 Hostile Work Environment Claim We turn now to Complainant’s hostile work environment claim. As an initial matter, we find a that finding of harassment on claim 3 is precluded due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). To establish a claim of harassment on claims 1 and 2, 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). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe and pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Serv., Inc., 23 U.S. 75 (1998). While we are mindful of Complainant’s allegations in claim 1, we note that both the Call Center Supervisor and Section Chief vehemently denied Complainant’s allegations. ROI at 66-69. Complainant bears the burden of proving, by a preponderance of the evidence, that the alleged discriminatory acts occurred. Because Complainant failed to provide any affidavit or sworn statement regarding her allegations, we find that Complainant has provided no evidence that the alleged event occurred because of her protected bases. With regard to claim 2, concerning Complainant’s leave requests, we note that the Call Supervisor did in fact change Complainant’s leave requests to either LWOP or AWOL. However, we find that Complainant has not shown that the underlying allegations occurred because of her protected classes, as the record reflects that the Call Center Supervisor changed Complainant’s leave requests because Complainant had expended her FMLA leave balance and was no longer entitled to FMLA leave during the relevant period. ROI at 70-71. As Complainant has not shown that the alleged incidents occurred because of her protected classes, we conclude that Complainant’s claim of harassment must fail. 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. 2020004108 6 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). 2020004108 7 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 December 7, 2021 Date