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

Equal Employment Opportunity Commission

Aug 9, 2022

Appeal No. 2020004172 (E.E.O.C. Aug. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sofia W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004172 Hearing No. 510-2017-00411X2 Agency No. 200I06752016104808 DECISION 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 10, 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. At the time of events giving rise to this complaint, Complainant worked as a Physical Therapy Assistant, GS-8, at the Agency’s Medical Center in Orlando, Florida. 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 The record indicates that the instant complaint was consolidated with a subsequent complaint, namely Agency No. 200I-0675-2018100930; Hearing No. 510-2018-00383X, during the hearing process. However, the Administrative Judge (AJ) issued two separate orders dismissing the cases and remanding the complaints for a final Agency decision. The Agency issued a FAD addressing Agency No. 200I-0675-2018100930 on August 28, 2019, which was addressed in Sofia W. v. Dep’t of Vet. Aff., EEOC Appeal No. 2019002749 (Aug. 18, 2020). However, the Agency failed to issue a FAD addressing the instant complaint until it realized the error on July 10, 2020. 2020004172 2 Complainant alleged that the Agency discriminated against her on the bases of race (Hispanic- Puerto Rican), sex (female; sexual orientation3), and in reprisal for prior protected EEO activity, when: 1. On February 2, 2016, the Chief or Physical Medicine and Rehabilitation issued Complainant a Proposed Three-Day Suspension for being absent without leave (AWOL); 2. On February 29, 2016, the Chief of Staff issued Complainant a letter of alternative discipline, indicating the letter will be given the same weight as a three (3) calendar day suspension; 3. In March 2016, Complainant asked her first-line supervisor to remove the three- day suspension from her file, and the supervisor refused; 4. In April 2016, during a staff meeting, Complainant asked the Chief of Physical Medicine and Rehabilitation a question about the “TENS Units” that were on the meeting minutes and he ignored her; 5. In April 2016, during a monthly meeting, the staff was informed that they would have an intercom system called VOCERA to address Complainant’s concerns about communications with the front desk and the staff, but the intercom system never happened; 6. Complainant asked her first-line supervisor to change her schedule to start at 7:00 a.m. and he refused; however, another employee was given this schedule; 7. On August 3, 2016, Complainant’s first-line supervisor informed Complainant’s coworker of Complainant’s grade and salary, which made her “working conditions a living hell” because the other Physical Therapy Assistants felt Complainant did not deserve her grade and pay; 8. On August 4, 2016, Complainant again asked her first-line supervisor to change her schedule to start at 7:00 a.m. and he did not respond; 9. On August 12, 2016, the Chief of Physical Medicine and Rehabilitation issued Complainant a Ten-Day Proposed Suspension for failure to provide assigned patient care; 3 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020004172 3 10. On February 7, 2017, Complainant was issued a Notice of Proposed Removal; and 11. On March 1, 2017, Complainant was issued a Notice of Last Chance Agreement, dated March 1, 2017. 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 requested a hearing. However, the AJ granted the Agency’s November 26, 2018, Motion for Sanctions and denied the hearing request in the December 7, 2018, Order of Dismissal. The AJ remanded the complaint to the Agency, and 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 as alleged. First, the Agency analyzed claim 11 as an independently actionable claim.4 While the Agency found that Complainant established a prima facie case of reprisal, the Agency determined that she failed to establish a prima facie case of discrimination on the remaining bases because she did not show that employees outside her protected groups were treated more favorably. For example, the comparator identified by Complainant occupied a different position, would not be in the position of providing therapy to non-Veterans, and shared at least one protected class with Complainant. Additionally, the Agency found that the Director provided sufficient testimony to satisfy the Agency’s burden of articulating a legitimate, nondiscriminatory reason for its actions. Specifically, the Director stated that Complainant admitted to one of the underlying charges that led to the Last Chance Agreement, providing medical care to non-veterans. The Director added that the preponderance of the evidence supported the additional charge, failure to provide assigned patient care. Moreover, he found that Complainant was aware of Agency policy and had knowingly violated the policy. The Agency determined that Complainant’s statement regarding pretext was not substantiated and the Director explained instances in which Agency employees may provide medical care to other Agency employees, such as for humanitarian reasons or when approved by a workman’s compensation doctor. The Agency further determined that the fact that Complainant was offered a Last Chance Agreement, which she voluntarily entered into rather than face a removal action was, itself, evidence which belied any discriminatory motive on the part of the Agency officials. The Agency added that the record revealed several instances of mitigation and reduction of discipline in addition to the Last Chance Agreement, which allowed Complainant to continue working for the Agency. 4 The Agency accepted claims 1, 3, 4, and 5 as evidence in Complainant’s harassment claim and not as independently actionable claims. Claim 2, however, was dismissed as an independently actionable claim due to untimeliness, but the Agency still included the claim for consideration in the analysis of Complainant’s harassment claim. 2020004172 4 Regarding Complainant’s harassment claims, the Agency stated that Complainant did not establish that the harassment complained of was based on her statutorily protected classes or EEO activity. The Agency noted that Complainant listed comparators within her same class and for those comparators outside of her protected classes, the record showed that they were not similarly situated. The Agency found Complainant’s allegation that she did not receive an excellent rating on her performance appraisal because management did not try to implement her ideas was not supported because the facility implementing or not implementing new programs was not a potential category considered in the appraisal. Further, the Agency added, even if it were included in one category, Complainant did not receive an excellent rating in other categories which would allow her overall rating to be considered excellent. With respect to claims regarding removal of the suspension letter, Complainant being brushed at a staff meeting, implementation of VOCERA, and the revealing of Complainant’s GS level, the Agency equated the incidents to personality conflicts and snubbing that are not protected under Title VII or the Rehabilitation Act. In support, the Agency noted that Complainant testified to having conflicts with management for reasons unrelated to her protected classes. The Agency pointed out that Complainant’s letter of resignation listed many complaints regarding actions of management, their management styles, and conflicts between management and all staff, including those outside of her protected classes. Finally, the Agency determined that Complainant did not establish that the disciplinary actions were issued on the basis of her protected classes or EEO activity. According to the Agency, Complainant admitted to the charges in the underlying incidents and the Agency repeatedly gave Complainant opportunities to discuss the discipline, including presenting mitigating evidence and in each instance, the proposed discipline was mitigated to a lesser penalty. Accordingly, the Agency concluded that Complainant failed to establish that she was subjected to a hostile work environment based on discriminatory and/or retaliatory animus. The instant appeal followed. 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 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”). As an initial matter, we note that Complainant did not contest the AJ’s dismissal of the hearing request on appeal. 2020004172 5 Upon careful review of the Agency’s decision and the evidence of 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. 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). 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. 2020004172 6 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. 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 August 9, 2022 Date