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

Equal Employment Opportunity Commission

Dec 22, 2022

Appeal No. 2022003201 (E.E.O.C. Dec. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tamiko Q.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022003201 Agency No. 200H-VI10-2021102769 DECISION On May 21, 2022, 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 22, 2022, 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. 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 Program Analyst, GS-12 at the Agency’s Veterans Integrated Service Network (VISN) 10 Human Resources Managerial Cost Accounting (MCA) facility in Cincinnati, Ohio. On April 21, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African- American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On January 3, 2021, Complainant was reassigned from her position as a supervisory program analyst to a non-supervisory non-program analyst; 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. 2022003201 2 2. On January 20, 2021, Complainant was advised by email that she was being removed from VISN committees for which she served as a chairperson; 3. On August 20, 2021, Complainant learned of her non-selection for the position of Supervisory Program Analyst (Managerial Cost Accounting), vacancy announcement CBSR-11177312-21-JM; 4. On September 3, 2021, Complainant’s request to work four hours of compensatory time to complete time-sensitive work assignments was denied; 5. Complainant’s compressed work schedule was threatened.2 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision found that the Agency articulated legitimate, nondiscriminatory reasons for each of its actions, specifically that Complainant’s reassignment was part of a reorganization of VISN 10 staff across several facilities in an attempt to remedy inconsistencies in job assignment and grade levels from site to site and that Complainant was not selected for the Supervisory Program Analyst position because she did not interview as well as the Selectee.3 The decision found that Complainant did not establish that any of the Agency’s reasons were a pretext for discrimination and that Complainant did not establish a hostile work environment because the evidence did not indicate that any of the alleged incidents were due to a protected class and also because the incidents taken together were not severe or pervasive enough to constitute a hostile work environment. The decision therefore concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant initially challenges the Agency’s dismissal of one of her claims of being removed from the collective bargaining process as improper. On the merits, Complainant reiterates her contentions that the Agency’s stated reasons are a pretext for discrimination. The Agency filed a response urging affirmance of its decision. 2 The Agency initially dismissed one of the claims raised in Complainant’s complaint, i.e. that she and some other employees were stripped of their status as bargaining unit employees during the VISN 10 reorganization, as a collateral attack against a different process. See Report of Investigation (ROI) at 33-35. 3 The decision also found that Complainant did not establish a prima facie case of race discrimination with respect to the non-selection because the Selectee was also a member of the same protected class. 2022003201 3 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 Chapter 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”). Dismissal of a Claim as a Collateral Attack The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (September 22, 1994). On appeal, Complainant argues that the Agency erred in dismissing her claim that the Agency improperly removed other employees from their status in the bargaining unit because she had previously been a supervisor and therefore was not part of the bargaining unit at all. We reject Complainant’s argument. Regardless of whether Complainant was or was not part of the bargaining unit, any issues concerning bargaining unit status are matters properly decided in the collective bargaining agreement/negotiated grievance process and are not appropriate before the Commission.4 See Reyes v. Dep’t of Homeland Sec’y, EEOC Appeal No. 0120101922 (Aug. 19, 2010). We therefore affirm the Agency’s dismissal of Complainant’s claim regarding her bargaining unit status pursuant to 29 C.F.R. §1614.107(a)(1). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, 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 4 To the extent Complainant appears to be challenging the Agency’s stripping other employees of their bargaining unit status, even if such a claim were not a collateral attack on the negotiated grievance process, Complainant does not have standing to bring claims on behalf of other unnamed employees. See Strzyzynski v. U.S. Postal Serv., EEOC Appeal No. 01A03167 (Aug. 25, 2000). 2022003201 4 articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. 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 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Operations Manager explained that in 2020, she was instructed to complete the consolidation/reorganization of the former VISN 11 staff to the VISN 10 Consolidated Work Unit (CWU) as part of a process to achieve consistency in grade levels and job positions between different sites. See Report of Investigation (ROI) at 171-73. As a result of the reorganization, staff were laterally reassigned to the new CWU positions at the same grade level. See ROI at 172. In the CWU, all supervisory positions are at the GS-13 grade level and so Complainant was moved to a non-supervisory Program Analyst position, a position which Complainant accepted, but could not retain her supervisory responsibilities because under the CWU, all supervisors must be GS-13. See ROI at 172. The Operations Manager explained that contrary to Complainant’s contention, the other Supervisory Program Analyst who kept her supervisory role did so because she was already a GS-13 and was able to be laterally reassigned to a supervisory role. See ROI at 173. With respect to claim 3, the Operations Manager explained that there were several promotional opportunities available for the former VISN 11 staff members for which they needed to compete. See ROI at 173. She further stated that she was on the interview panel and was the hiring manager for the position at issue and the decision was made based on the interview because after the resume review, all the candidates had similar experience and knowledge. See ROI at 179. The three members of the interview panel all agreed that the Selectee, who is also of the same race as Complainant, interviewed better because she provided specific answers and examples to the questions that were innovative and showcased her experience, while Complainant did not interview well, ranking third out of the three candidates, providing unorganized and rambling answers and tending to digress. See ROI at 179; 203; 238- 39. One of the panelists further stated that Complainant did not know all the procedures well enough to answer questions and train and lead her team in the complex processes of Managerial Cost Accounting. See ROI at 239. 2022003201 5 With respect to claim 2, Complainant’s Supervisor, a Supervisory Program Analyst, explained that after the reorganization, Complainant was one of several other employees who were asked to step down from two committees which did not fall within the purview of her new role within the CWU. See ROI at 199-200. The Operations Manager further explained that it was decided that only one supervisor from the CWU would be assigned to each committee to represent the Managerial Cost Accounting staff, rather than tying up the time of several staff members. See ROI at 174. With respect to claim 4, both the Operations Manager and Complainant’s Supervisor explained that as a matter of policy, no employees are ever approved comp time for the completion of regular duties. See ROI at 183-84; 207-208. The Operations Manager further stated that Complainant was given the option of changing her compressed day off on a temporary basis in order to help her meet the deadline, which Complainant refused to do. See ROI at 183. We find that Complainant did not establish that any of the Agency’s reasons are a pretext for discrimination. To the extent Complainant argues that the reorganization process was unfair because it forced the Michigan, Indiana, and Indianapolis sites that had been operating under the national MCA processing guidelines to adopt Ohio’s process, we note that this is unrelated to any protected class and therefore is outside the purview of the Commission. While we acknowledge that Complainant is disgruntled at the loss of her supervisory duties, there is simply no evidence in the record to support Complainant’s assertions that she was somehow singled out during the reorganization process due to any protected basis. We further emphasize that, aside from Complainant’s repeated assertions that the Agency officials are being untruthful, she has offered no evidence to support her assertions. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. See Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). Moreover, mere disagreement with an Agency’s actions is not sufficient to establish pretext. See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). With respect to the non-selection, Complainant cannot demonstrate pretext based on her subjective assessment of her own qualifications and interview performance. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). It is well established 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. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130083 (Aug. 8, 2014). Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of 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 the 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 employer. See Henson v. City of Dundee, 682 2022003201 6 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by any of her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, the record indicates that the incidents Complainant characterizes as evidence of harassment involve routine work assignments, instructions, and admonishments, which are neither severe nor pervasive enough to alter a term or condition of employment. See Eckenrode v. U.S. Postal Serv., EEOC Appeal No. 0120113930 (Nov. 6, 2012); Quinones v. Dep’t. of Homeland Sec., EEOC Appeal No. 01A53109 (Mar. 31, 2006). Complainant’s subjective assertion that she has been subjected to bullying and harassment which has caused her fear and anxiety are not sufficient to meet the objectively offensive standard required by Title VII. See Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview.”). 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 that Complainant did not establish that she was subjected to discrimination as alleged. 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). 2022003201 7 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. 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). 2022003201 8 FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 22, 2022 Date