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

Equal Employment Opportunity Commission

Jun 7, 2022

Appeal No. 2021001565 (E.E.O.C. Jun. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shaunda D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001565 Agency No. 200H-0620-2019103567 DECISION On December 8, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 1, 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. BACKGROUND During the period at issue, Complainant worked as a Mail Clerk, GS-5, at the Agency’s VA Hudson Valley Health Care System (HVHSC) in Montrose, New York. On June 24, 2019, Complainant filed a formal complaint alleging she was unlawfully retaliated against for engaging in protected activity (previously filed EEO complaints in 2014 and 2019) when from March to December 2019, she was subjected to comments, intimidation, police searching her car and coat, and not being allowed to leave early or make her own schedule. Complainant also raised the following three claims: 1. On April 2, 2019, she was directed to use leave being 20 minutes late for work; 2. On October 2, 2019, Complainant was issued a written counseling; and 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. 2021001565 2 3. On Wednesday, November 27, 2019 (the day before Thanksgiving), she had to remain at work to wait for packages while other employees were allowed to leave 59 minutes early. After an investigation, Complainant was provided a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on December 1, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 1, Complainant claimed that on April 2, 2019, she was directed to use leave for being 20 minutes late for work. The Supervisory Inventory Management Specialist was Complainant’s supervisor (“S1”). S1 stated he was not aware of Complainant’s prior EEO complaints until she filed the instant complaint and noted that they arose prior to him becoming her supervisor. S1 asserted that based on his knowledge, no one directed Complainant to enter leave for April 2, 2019. 2021001565 3 Regarding claim 2, Complainant asserted that on October 2, 2019, Complainant was issued a written counseling. S1 explained that he issued Complainant a written counseling for failure to follow HVHSC policy by leaving mail unattended. As a Mail Clerk, Complainant was responsible for mail security and for not leaving mail unattended. On September 30, 2019, Complainant was observed by the Associate Chief of Logistics and Supervisory Inventory Management Specialist leaving a mail cart unattended in the hallway. The Associate Chief noted Complainant left mail in the hallway and she continued to get on the elevator without the mail. The counseling also indicated that Complainant had been verbally disrespectful to colleagues on two recent occasions. According to the Logistics Acquisition Utilization Specialist, she stated that on September 25, 2019, she entered the mailroom, Complainant requested that she sign a logbook. When the Logistics Acquisition Utilization Specialist asked why she had to sign the logbook, Complainant responded “did you not hear what I just said to you?” On September 30, 2019, when the Associate Chief reminded Complainant that she cannot leave the mail cart unattended, Complainant stated “I‘ll go to EEO on you” and continued to leave the mail cart unattended. Regarding claim 3, Complainant alleged that on November 27, 2019, she had to remain at work to wait for packages while other employees were allowed to leave 59 minutes early. S1 stated, however, that he had asked for a volunteer to work in the mail room and Complainant volunteered to remain at work on November 27, 2019, while other employees left approximately 59 minutes early. S1 explained that all sections within Logistics required an employee to stay until close of business on November 27, 2019. He noted that the Acting Chief of the Service granted 59 minutes due to the Thanksgiving holiday. Moreover, S1 stated that on December 31, 2019, the Acting Chief granted 59 minutes to anyone who volunteered to stay until close of business in which Complainant was granted 59 minutes on December 31, 2019. Beyond her bare assertions that the above-described events were motivated by retaliatory animus for her prior EEO activity, she proffered no evidence in support of this claim. In sum, she failed to prove, by a preponderance of the evidence, that the legitimate reasons for the disputed actions proffered by responsible management officials were a pretext masking an unlawful retaliatory motivation. Harassment 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 a protected basis - in this case, her prior EEO complaint. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). 2021001565 4 Complainant claimed that starting in March 2019 to the present, Agency management harassed her when she was subjected to comments, intimidation, police searching her car and coat, and not being allowed to leave early or make her own schedule. As examples, Complainant complained a supervisor told her she could “fight for it” when she did not want to go to the mailroom, a police officer searched her belongings but not the belongings of other co-workers, a supervisor stated he was “going to get into people’s asses” for not doing their jobs, and a co-worker threatened to sue her and cursed out another employee. Regarding the police incidents, Complainant alleged that on March 19, 2019, during routine rounds in the mail room, an Agency police officer instructed his dog to sniff Complainant’s coat, but not the belongings of others. She also alleged that on June 6, 2019, during her lunch break she saw an police officer examining her vehicle in the parking lot. There is not allegation that any further action resulted from these incidents. Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her prior EEO complaints. Significantly, there is no evidence that the involved Agency personnel were aware of Complainant’s prior EEO complaints. Moreover, even if they were, Complainant’s claim of harassment is precluded because there is no evidence to establish that the matters identified by Complainant were in any way motivated by unlawful retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2 2 On appeal, Complainant does not challenge the August 2, 2019 partial dismissal issued by the agency regarding eight other claims. Therefore, we have not addressed these issues in our decision. 2021001565 5 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). 2021001565 6 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 June 7, 2022 Date