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

Equal Employment Opportunity Commission

Apr 14, 2021

Appeal No. 2020001504 (E.E.O.C. Apr. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adell W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001504 Hearing No. 530-2016-00159X Agency No. 2004-0581-2014103971 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 3, 2019 final order 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. and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. At the time of events giving rise to this complaint, the Agency employed Complainant as a Mental Health Social Worker, GS-0185-11 at its Medical Center in Huntington, West Virginia. On August 14, 2014, Complainant filed a formal complaint in which she alleged that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female) and reprisal (prior protected EEO activity) when: 1. On January 21, 2010, the Agency disapproved Complainant’s request for an authorized absence to attend training in Lexington, Kentucky, and denied her request for reimbursement for the associated training costs when she used her annual leave; 2. Since 2011, the Chief of the Social Work Section of the Mental Health Unit (CSW), has treated Complainant in a demeaning manner creating an oppressive environment 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. 2020001504 2 where others have mimicked CSW’s behavior and management has failed to take corrective action; 3. On July 11, 2012, the Agency did not approve funding for Complainant’s application for the student loan repayment program; 4. On an unspecified date in 2013, the Agency did not select Complainant to serve on a committee that addressed the needs of homeless veterans; 5. Ongoing since July 23, 2013, CSW had not approved a request to issue Complainant a PRAISE award (a non-monetary award) for Complainant’s assistance in suicide prevention training; 6. On May 5, 2014, CSW scheduled a meeting with Complainant for May 6, 2014, to discuss a written counseling and the leave policy, when her representative was not available; 7. On May 6, 2014, CSW violated Complainant’s privacy by including other staff members on an email addressed to Complainant scheduling a meeting for May 8, 2014, in which he, CSW, stated, “if you are not here and on time, I will file charges of insubordination and take immediate disciplinary action;” 8. On June 2, 2014, CSW attempted to issue Complainant a letter of written counseling; 9. On unspecified dates in June 2014, CSW had been verbally intimidating toward Complainant in the presence of other union representatives and has not allowed Complainant the opportunity to provide an explanation; 10. On July 9, 2014, CSW issued Complainant a letter of counseling; 11. On July 16, 2014, the Agency denied Complainant’s request to attend disruptive behavior /crisis intervention training scheduled to take place in August 2014; 12. On July 30, 2014, CSW scheduled Complainant for a meeting on July 31, 2014, to review coding and billing policies when CSW was aware that Complainant’s union representative was on vacation; 13. On unspecified dates in July 2014, CSW sent Complainant emails concerning clerical or technical points that he would have addressed in a phone call to her coworker; 14. On August 29, 2014, CSW scheduled a meeting for September 5, 2014, to discuss a proposed performance improvement plan with Complainant and her representative; 2020001504 3 15. On October 2, 2014, CSW left Complainant a voicemail message disapproving her verbally preapproved annual leave for October 3, 2014; and 16. On an unspecified date, Complainant became aware that a male coworker, who has worked in her department a little over a year, is paid a higher salary than her for performing the same job in violation of the Equal Pay Act. After its investigation into the complaint, the Agency provided Complainant with a copy of the investigative report (IR) and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for summary judgment. 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. Hostile Work Environment After a careful review of the record, the Commission finds that the AJ’s decision to issue summary judgment was appropriate, as no genuine dispute of material fact exists. To establish a hostile work environment claim, Complainant must show that: (1) she belongs to 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 her 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 2020001504 4 liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). With regard to claims (1) through (15), the Commission agrees with the AJ that, construing the evidence in the light most favorable to Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming, arguendo, that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. Thus, upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that with respect to incidents (1) through (15), the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination, reprisal, or a hostile work environment as alleged. Wage Discrimination The United States Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan, 417 U.S. 188 (1974). To establish a prima facie case of a violation under the EPA, Complainant must show that she received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (Sept. 12, 2000), req. for reconsid. den’d, EEOC Request No. 05A10076 (Aug. 12, 2003). As noted above, Complainant was a GS-0185-11 Social Worker. She compared herself to Comparator 1, a male GS-0180-13 Psychologist, who she averred was making approximately $30,000 to $35,000 more per year than her. She maintained that she and Comparator 1 were performing duties that were substantially similar and, in some instances, virtually equal. IR 213- 18. However, the record does not bear out this assessment. In the first place, according to the Mental Health Services Chief who was there at the time and had since retired, Complainant and Comparator 1 were in different disciplines each of which had its own compensation schedule. Comparator 1 was hired as Psychologist but was not initially licensed and had to practice under the supervision of a licensed psychologist or physician. 2020001504 5 While Complainant and Comparator 1 did similar work at the time, this was only temporary until Comparator 1 could obtain his license. Once he obtained his license, there were numerous ways in which their work differed. The former Mental Health Services Chief and her successor, an Acting Mental Health Services Chief averred although there was some overlap in job functions and duties, Comparative 1 performed many duties beyond what Complainant was able to do. IR 284-85 307-08. For example, Comparator 1 could complete assessments and discontinuance of patient suicide observations without consulting with another psychologist or physician. In addition, Comparator 1 performed psychological testing and was proficient in the use of several instruments including neuropsychological screening instruments. Complainant, as a Social Worker, could complete some of the screening but could not administer or provide assessment supervision of many of the formal assessment instruments Comparator 1 could. Comparator 1 completed evaluations assessing a patient’s decision-making capacity and completed documentation regarding that capacity, which could only be completed by a qualified physician, psychologist, or advanced practice nurse. In addition, Comparator 1’s position was a multi-grade position for which the full performance level was GS-13. IR 338-44. In contrast, Complainant’s position as an Emergency Room Social Worker had no promotion potential beyond the GS-11 level. IR 330-337. Additionally, their credentials were not the same. Complainant averred that she had a master’s degree in social work. IR 214. Comparator 1 had a Ph.D. degree in psychology. Further, Complainant averred that Comparator 1 was hired as a GS-13. According to the former Mental Health Services Chief, Comparator 1 was hired directly out of graduate school as a GS-12, and had since been promoted to GS-13, which was permissible given the promotion potential and full performance range of the Psychology position. IR 284. Complainant has not presented any documentary or testimonial evidence tending to show that there was any impropriety in the method or manner by which Comparator 1 had been hired. We therefore find that Complainant and Comparator 1 were not performing equal work requiring equal skill, effort and responsibility. Complainant also compared herself to three male social workers who were at grades GS-12 and GS-13. Comparator 2 was a male GS-0185-12 Social Worker who served as the Local Recovery Coordinator. IR 345-49. Comparator 3 was a male GS-0185-12 Social Worker who worked in the Community Resource and Referral Center, an organization dedicated to providing specific outreach services to homeless veterans. IR 350-54. Comparative 4, Complainant’s Supervisor, was a GS-0185-13 Supervisory Social Worker, and Chief of the Social Work Service. IR 355-58. As previously noted, Complainant’s position had no career-ladder promotion potential beyond GS-11. According to the former Mental Health Services Chief, social work jobs above GS-11 tended to be coordinator or supervisory positions and required competitive promotions, but Complainant never applied for those jobs. IR 285-86. As with Comparator 1, we find that Complainant had not shown that she had received lower pay than a male employee for equal work, requiring equal skill, effort, and responsibility. For these same legitimate, nondiscriminatory reasons, we find Complainant's claim of sex-based wage discrimination under Title VII must fail as she failed to demonstrate that these reasons were pretextual. We therefore agree with the AJ, that Complainant failed to raise a genuine issue of material fact with respect to incident (16). 2020001504 6 Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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). 2020001504 7 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 April 14, 2021 Date