Jackqueline G.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 7, 2020

2019003199 (E.E.O.C. Jan. 7, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jackqueline G.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019003199 Hearing No. 480-2014-00779X Agency No. 13-0431-F DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the October 25, 2018 final order concerning an 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Revenue Officer in its El Monte, California facility. On June 12, 2013, Complainant filed an EEO complaint alleging harassment and discrimination by the Agency on the bases of age (65 years old), color (brown), sex (female) and in reprisal for previous EEO activity when: 1. On or about August 2, 2012, Complainant’s new Group Manager (GM) asked her age, questioned why she was still working, and inquired when she planned to retire; 2. GM did not timely respond to Complainant’s request for reduced inventory on four occasions from August 24, 2012 to March 20, 2013; 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. 2019003199 2 3. From September 2012 to May 2013, GM did not timely respond to Complainant’s requests requesting credit hours; the issuance of documents; a copy of the telework agreement; and credit hours associated with time previously worked; 4. From September 2012 to May 2013, GM questioned Complainant’s National Treasury Employee Union (NTEU) duties and/or time requests; 5. Since October 2012, GM denied Complainant’s requests to view her “employee binder;” 6. On October 4, 2012, GM prematurely issued Complainant’s Individual Performance Factor (IPF) using the wrong rating period and failed to provide her with a copy of the document; 7. On October 25, 2012 and October 31, 2012, Complainant found additional IPF documents in her employee binder that were not previously shared with her; 8. On October 31, 2012, GM sent an email message to Complainant advising her that certain reviews were removed from her performance record when that was not actually the case; 9. On November 5, 2012, GM sent an email message to Complainant accusing her of having a “serious problem” with time management; 10. During a November 4, 2012 group meeting, Complainant’s question of the Territory Manager was not answered, and Complainant was “silenced” while others could speak; 11. Throughout January 2013, the Territory Manager delayed signing off on Complainant’s case work; 12. On January 14, 2013, the Territory Manager sent Complainant an email message questioning her “computer downtime” and GM directed Complainant to come into the office to provide information regarding her related computer repair request; 13. In a January 14, 2013 meeting, GM errantly identified Complainant’s inventory as consisting of 27 cases instead of 51 cases; 14. In a January 24, 2013 memorandum, GM incorrectly advised Complainant that she required wireless connectivity in order to telework; 15. On January 30, 2013, GM sent Complainant an email message questioning her actions regarding her work on a case involving a Power of Attorney and commenting on her inventory; 2019003199 3 16. On February 19, 2013, GM issued Complainant a memorandum regarding missing a mandatory survey meeting that Complainant did not know was mandatory; 17. On February 27, 2013, GM denied Complainant’s request for annual leave or credit hours for April 8, 9, and 10, 2013; 18. In March 2013, GM failed to approve Complainant’s GovTrip entries for field time through March 27, 2013, and asked her to resubmit for field time through March 26, 2013; 19. On March 5, 2013 and April 10, 2013, GM asked Complainant what she would be working on with respect to her request for official EEO-related time; 20. On March 18, 2013, GM sent an email message canceling all leave for March 27, 2013, because of a mandatory meeting called by the Territory Manager; 21. In the March 27, 2013 meeting, the Territory Manager silenced Complainant and told her that she could not take notes; 22. On March 27, 2013, GM sent an email message to Complainant directing her to close her overage investigation but failed to take Complainant’s circumstances into account in issuing the directive; 23. On March 28, 2013, GM issued Complainant a Time Utilization Review; 24. On April 9, 2013, GM issued Complainant a memorandum regarding “Protection of the Public Interest;” 25. On April 11, 2013, GM sent Complainant an unnecessary email message looking for her because she was not at her desk; 26. On April 11, 2013, GM met with Complainant after her tour of duty to ambush her; 27. On April 11, 2013, Complainant learned that her inventory of 41 cases was much greater than that of similarly-situated employees; 28. GM denied Complainant’s request for credit hours on April 11, 2013; and 29. On May 1, 2013, GM directed Complainant to work from her office until her Outlook computer program and printer issues were resolved. 2019003199 4 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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. 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. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2019003199 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2019003199 6 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 January 7, 2020 Date