[Redacted], Adele P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 9, 2021Appeal No. 2020003708 (E.E.O.C. Aug. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adele P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003708 Agency No. 200H-0561-2019101126 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 26, 2020, finding no discrimination concerning her complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Instrument Technician, GS-6, at the Agency’s Medical Center in East Orange, New Jersey. On February 13, 2019, Complainant filed an EEO complaint alleging discrimination based on age (over 40) when: 1. She was denied login access to her laptop on December 23 - 24, 2018; 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. 2020003708 2 2. In 2018, she was charged as Absent Without Leave (AWOL) on November 26 - 30, 2018, December 6, 2018 (1:00 pm - 3:30 pm), and December 7, 2018 (7:00 am - 8:15 am); 3. She was assigned to a different service on December 10, 2018; 4. She was placed on leave restriction on January 17, 2019; 5. Her annual leave requests were denied for: January 24 - 30, 2019, February 7 - 8, 2019, February 15, 2019, and March 4, 5, 6, and 8, 2019; 6. Her Leave Without Pay (LWOP) requests for March 11, 13, and 14, 2019, were denied; 7. On March 21, 2019, she was reassigned for the day; and 8. She was subjected to harassment, in addition to the incidents described in claims 1 - 7, when: her first level supervisor (S1) yelled at her on December 23, 2018, during the computer incident described in claim 1; on March 7, 2019, she and S1 had a verbal confrontation during a meeting which initially pertained to her use of leave; on March 21, 2019, S1 followed her to the lunch room and later stood in the hall and watched her as she was coming off the elevator; and on March 25, 2019, she was issued a proposed 14- day suspension. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Regarding claim 1, Complainant’s access to her work computer was revoked because she violated the Rules of Behavior when she allowed her daughter to use her work computer on November 9, 2018. Complainant was allowed the access to her computer after she took the required Rules of Behavior classes. Regarding claims 2, 4, 5, and 6, Complainant’s work hours were from 7:00 am to 3:30 pm. However, Complainant would come to work between 8:00 am and 8:15 am; and then she would call and leave a voice mail message for the supervisor stating she would like to use annual leave to cover her off time for that morning. This happened more than 15 days in a 30-day period and Complainant requested annual leave to cover her daily tardiness. S1 indicated that she did grant annual leave to Complainant at first but when her tardiness with annual leave request became excessive, she decided to enforce time and attendance rules. Complainant was issued a Leave Usage Counseling letter for abuse of leave and was notified that annual leave would not be approved unless requested in advance. Complainant continued to abuse her leave by coming to work late without notice or permission from a supervisor, and she thus was charged with AWOL and her annual leave/LWOP requests were denied. 2020003708 3 S1 noted that she later approved Complainant’s sick leave request for November 26 - 28, 2018, although Complainant has yet to provide the requested doctor’s note. Regarding claim 3, S1 indicated that Complainant was reassigned from the Ear Nose Throat (ENT) Department to the Surgical Services Office because an employee (EE) in the ENT filed a complaint against Complainant. The EE submitted written statements and emails to S1 in November and December 2018, complaining that Complainant was creating a very hostile workplace in her ENT. Complainant would come into the ENT clinic and talk on the phone (so EE could hear) complaining about management and S1 and also say EE was a snitch. On one occasion, Complainant confronted EE while she was in the hallway and told her that she needed to watch herself and that her snitching would not get her far working at the Agency. The record reveals that the EE was one of the employees who witnessed and reported Complainant’s daughter using her computer on November 9, 2018. Regarding claim 7, S1 indicated that the administrative office where Complainant worked was being renovated, and there were no computers or desks available for Complainant. Thus, Complainant was temporarily assigned to the operating room for three days during this renovation. Complainant’s duties involved working with the operating room staff and S1 stated that it made sense to provide the operating room workspace to her during the renovation. Regarding claim 8, S1, denied yelling at Complainant but told her that she had to complete the required Rule of Behavior courses to regain her access to her work computer. S1 did not recall the confrontation as alleged and denied following Complainant to the lunchroom. The record reflects that Complainant was issued the proposed suspension, dated March 18, 2019, for her inappropriate conduct, failure to follow supervisory instruction, bringing her daughter in her work area on a number of occasions without permission, and for allowing her daughter to access her Agency computer. S1 noted that the proposed suspension was rescinded because Complainant’s attendance and performance improved after her subsequent reassignment to a new position (which is not at issue). Complainant filed the instant appeal. 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 (EEO MD-110), 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"). 2020003708 4 After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Complainant received AWOL and/or was denied leave because she continued to come to work late without her supervisor’s permission and asked for leave for her tardiness. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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). 2020003708 5 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. 2020003708 6 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, 2021 Date Copy with citationCopy as parenthetical citation