Melani F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 2, 2020

2020002090 (E.E.O.C. Sep. 2, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melani F.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002090 Agency No. 200J-0732-2019102308 DECISION On January 13, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 20, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 an Executive Secretary at the Agency’s North Central Consolidated Patient Accounts Center (CPAC) in Middleton, Wisconsin. On April 11, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American) and in reprisal for prior EEO activity (prior EEO complaint) when, on March 5, 2019, she was issued a letter of written counseling. After the investigation of the formal complaint, the Agency provided Complainant with 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 20, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. 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. 2020002090 2 The instant appeal followed. ANALYSIS AND FINDINGS 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 complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts which, 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, nondiscriminatory 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 based on 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 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). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. The Facility Revenue Manager (Caucasian) was the deciding official to issue Complainant a letter of written counseling for misconduct. She explained that a desk in the shared work space of customer service was broken. Therefore, a new desk was requested. The Manager stated that when the new desk was installed, it was not as big as the old one, so Complainant asked Facilities Management Services (FMS) to bring up a file cabinet for her belongings. The Manager stated that when she became aware of Complainant’s unauthorized request, she “requested four sets of keys to the cabinet (one for each employee including myself).” The Manager stated that she then sent an email to Complainant letting her know about the keys. She noted that Complainant shared her concerns she did not want anyone have access to her personal belongings when it was her rotation. “I understood her concerns, so I put in a request for all employees to be assigned a locker in the employee locker room to place her personal belongings. This request was made around January 16, 2019. 2020002090 3 I received an email back in reference to Maximo Ticket Service Request [number provided], stating the work order had been rejected, along with a status Memo: Locker not needed per [Complainant].” Thereafter, the Manager placed a ticket with FMS, Maximo Service Request number [number provided] for the sets of keys to be made.” The Manager stated that on January 24, 2019, when FMS attempted to get the number to the key to fulfill the work order placed by her, Complainant asked them to leave and did not allow them to complete the request. The Manager stated that was when she decided to issue Complainant the written counseling. The record contains a copy of the March 5, 2019 written counseling in which the Manager placed Complainant on notice that the cabinet would have to be available for everyone’s use who shared the workspace. The Manager further noted that on January 24, 2019, Complainant “prevented the completion of a service request I made to have additional keys made for the file cabinet you requested. The additional keys were requested so others who shared the workspace would be able to use the file cabinet. You were expected to give this matter your immediate action. Failure to comply with this counseling may result in action being taken against you, including removal, without the benefit of additional counseling.” Beyond her bare assertions, Complainant failed to produce evidence to prove, by a preponderance of the evidence, that the Manager’s proffered explanation for the counseling was a pretext designed to mask discrimination. Finally, to the extent that Complainant also offered this incident in support of a discriminatory harassment claim, this claim is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred.2 2 On appeal, Complainant does not challenge the April 29, 2019 partial dismissal issued by the agency regarding six other claims Therefore, we have not addressed these issues in our decision. 2020002090 4 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. 2020002090 5 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 September 2, 2020 Date