[Redacted], Adrianna J., 1 Complainant,v.Dennis R. McDonough, Secretary Department of Veterans Affairs (National Cemetery Administration), Agency.

Equal Employment Opportunity Commission

Apr 11, 2022

Appeal No. 2022000104 (E.E.O.C. Apr. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adrianna J.,1 Complainant, v. Dennis R. McDonough, Secretary Department of Veterans Affairs (National Cemetery Administration), Agency. Appeal No. 2022000104 Hearing No. 570-2020-00908X Agency No. 20DR-0040-2019104258 DECISION On October 8, 2021, 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 final action 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 Learning Resources Analyst (Education Technician), GS-1702-07, at the Agency’s Office of Engagement and Memorial Innovation (OEMI), National Cemetery Association facility in Washington, D.C. On October 4, 2019, 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), sex (female), and in reprisal for prior protected EEO activity when: 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. 2022000104 2 1. Beginning in February of 2017, the Educational Outreach Program Officer (S1) delayed granting Complainant telework privileges for two years; 2. From February 2017 to August 2018, Complainant was isolated from the rest of her team by being placed in an empty room, separate from all other employees; 3. In February 2018 to February 2019, S1 denied Complainant’s request for a promotion, and ignored her continued promotional requests and her status in the Pathways program; 4. During March 2018, S1 denied Complainant training opportunities; 5. On December 18, 2018, S1 issued Complainant a performance appraisal with a different position title than the one on the appraisal she received on August 10, 2018; 6. In February 2019, the Assistant Chief denied Complainant’s request to upgrade Complainant’s current position description to a higher grade, because the Assistant Chief believed Complainant did not do enough to justify the increase and referred her to her supervisor to work on an Individual Development Plan (IDP); 7. Beginning in February 2019 to the present, S1 ignored several of Complainant’s emails and concerns pertaining to her IDP; 8. In February 2019, her supervisor emailed Complainant, ordering her to complete the task of purchasing a drone, and despite being informed that the purchase was not authorized, her supervisor insisted that Complainant complete the task by the close of business and to “figure it out” or “just do it;” 9. Between May 8, 2019 and May 9, 2019, S1: a) issued Complainant a mid-year rating of “Needs Improvement,” b) spoke to her in an angry tone regarding the drone, and c) when Complainant refused to sign the rating, spoke to her in an angrier tone stating “You acknowledge it because I read it to you. You are being insolent, and I am going to report you to the Deputy Director and make note of this in the internet portal. The next time you consider sending my supervisors an email about me just remember they WILL let me know. I am your supervisor and you report to me only!”; 10. On May 10, 2019, S1 charged Complainant with Absence Without Leave (AWOL); 11. As of May 10, 2019, and continuing, S1 has not assigned Complainant any new work or tasks, leaving her at her desk with little or no work to complete on any given day; 12. On or about August 16, 2019, S1 removed one of Complainant’s financial tasks from her responsibility; and 13. On or about September 26, 2019, S1 used erroneous and misleading statements in Complainant’s performance appraisal and gave her an unsatisfactory rating. 2022000104 3 Claim 1 - Delay in Granting Telework Privileges Complainant was hired into the Pathways Program and served as a Pathways Program Intern from February 21, 2017, to February 18, 2018, and as a Career-Conditional Education Technician (Learning Resources Analyst), GS-7, from February 2018 to May 28, 2020. The Agency’s telework policy does not recommend telework for interns or trainees. S1 did not approve telework for employees during their first six months. Complainant became eligible for telework six months after her conversion from intern to a career-conditional position. Claim 2 - Isolation The Logistics Officer in Human Resources assigned employees to their workstations and assigned Complainant to the new room as part of a planned reorganization. There was no evidence suggesting that the space assigned to her was due to Complainant’s race or sex. At times, a remote employee and one other employee occupied the same room. By October 2019, all OEMI employees were consolidated in common workspaces. Claim 3 - Denial of Promotion Requests Complainant, like other career-conditional employees, was required to complete a one-year probationary period before being eligible for a promotion; however, Complainant’s position was at the full promotion potential. Complainant averred that other employees hired after her, and outside of her protected class, were given permanent positions of higher grade and salary, with no competition. Complainant was eligible to compete for other positions and S1 encouraged her to do so, even offering to write her a reference. Claim 4 - Denial of Training Opportunities Complainant averred that additional training was available, but she was not advised of the other training opportunities. Her supervisor and managers stated Complainant received the training necessary to carry out her assigned responsibility and further confirmed that she was approved travel for two trips to obtain Project Management Professional training. S1 stressed that he did not deny any training requests from Complainant and noted that he approved her contracting training for operational awareness and professional development even though she was not a Contracting Officer Representative. Claim 5 - Performance Appraisal with Different Position Titles Complainant did not receive a performance appraisal as an intern, because interns were not issued performance appraisals. After she was converted, the Human Resources (HR) Center requested that S1 resend Complainant’s performance appraisal with the correct title on her SF-50 form. S1 affirmed that it was not uncommon for different titles to be used to reflect specific functions while the SF-50 contains the official title for that series and grade. 2022000104 4 S1 also stated that it was not uncommon for HR to suggest corrections and that he followed HR’s direction as it related to HR record-keeping. Claim 6 - Denial of Higher Grade on Position Description Complainant requested a meeting with her third-level supervisor (S3) on February 14, 2019, to discuss her concerns about her position, her training, and her opportunities for promotion. S3 suggested the creation of an IDP with her supervisor. S1 stated that he immediately reached out to Complainant and asked what changes she would like to see in terms of responsibility and growth and asked her to think about training opportunities. S1 asserted that Complainant did not respond, and he followed up several days later, but she still failed to provide information. Complainant still compared her treatment to that given to others who were subsequently hired at the GS-11 level; however, Agency officials noted that they were hired in different positions and grades. Claim 7 - Lack of Response to IDP E-mails and Concerns S1 denied that he failed to respond to her concerns. S1 requested that Complainant clarify her interests for career advancement. After S1 had concerns about Complainant’s decreased work performance, Complainant was offered the opportunity to work under a different supervisor. Complainant failed to respond by the deadline. Claim 8 - Order to Purchase Drone In February 2019, S1 requested Complainant, who was a purchase card holder, to purchase a drone, an iPad, and the supporting software by mid-April. By March 19, 2019, the drone was purchased. Additional information was then requested by the Logistics Management Specialist and Equipment Inventory Listing Representative, who was contacted regarding the equipment request to purchase the iPad. S1 was asked to provide a business justification, a plan of accountability, storage plan, and a plan of iPad usage. On March 25, 2019, the Logistics Management Specialist explained these requirements to S1. S3 clarified to Complainant that she possessed approval and authorization for the purchase. On May 3, 2019, S1 asked Complainant to register the drone. On May 6, 2019, Complainant contacted S3’s manager about her concerns that registering a drone or using a government credit card may be illegal or unethical. Complainant believed that she was being blamed for the delay, which she thought was due to S1’s actions. Claim 9 - 2019 Mid-Year Appraisal Between May 8, 2019 and May 9, 2019, S1 spoke with her, informing Complainant that her level of progress required improvement to be “Fully Successful” or better. The progress review cited her incomplete tasks. Complainant alleged that S1 specifically spoke to her in an angry tone regarding the purchase of the drone. He then issued Complainant a mid-year rating of “Needs Improvement.” 2022000104 5 Complainant claimed that S1 attempted to force Complainant to sign the rating and after she refused, S1 spoke to her in an angrier tone. S1 denied threatening her and said he stopped the meeting after she refused to sign the mid-year review. Complainant reported the incident to Insider Threat Team. The team concluded that the incident did not rise to the level of workplace violence. Claim 10 - Absent without Leave Charge After the mid-year review, Complainant told her second-level supervisor (S2) that she was upset and would be leaving work. S2 instructed her to put her time in the leave system. Complainant took leave on May 10, 2019, prior to receiving approval of her leave request. Complainant entered May 9, May 13-16, and May 20-23, 2019, in one request and entered a separate request for May 10, 2019. When multiple dates are entered in one leave request, the supervisor can only approve or deny all dates without the option to approve certain dates. Additionally, sick leave of more than three consecutive days required medical documentation for approval. On May 10, 2019, S1 charged Complainant with AWOL when she was away without getting prior approval, but S3 made an exception and did not charge her AWOL. He also provisionally approved her leave requests for May 13, 2019 to May 15, 2019, and for May 20, 2019 to May 23, 2019, pending Complainant providing appropriate medical documentation. Complainant submitted medical documentation and the leave was approved. Claim 11 - No Assignment of New Tasks Complainant claimed that after the mid-year progress meeting, S1 excluded her from program plans, travel, program goals and functions. On October 16, 2019, S1 issued Complainant a Proposed Admonishment for being AWOL and insubordination for not reporting to her performance review meeting on October 10, 2019. S2 later sustained the charge. S1 affirmed that he and Complainant had communication issues because she refused to meet with him. As a result, S1 would assign one or two tasks at a time and send written instructions by email. On December 13, 2019, S1 issued Complainant a Letter of Expectations regarding her lack of communication, performance, and conduct in the workplace. Claim 12 - Removal of Financial Task Complainant was responsible for certifying the invoice related to a contracted employee. S1 took over this task. Complainant believed that this would impact her ability to receive promotions and awards. S1 stated that he had learned that Complainant had certified the invoices without verifying them. S1 asserted that he decided to do them himself as he was in the best position to verify the invoices as he was the employee’s supervisor. S1 stressed that Complainant still completed other tasks under her performance plan. 2022000104 6 Claim 13 - Performance Rating After she became a career-conditional employee, S1 gave Complainant the highest rating of “Outstanding” for her performance in Fiscal Year 2018. On October 9, 2019, however, S1 rated Complainant as “Fully Successful.” S1 noted that after February 2019, she ceased to communicate with him, left many tasks undone, and the quality of work was completely different from the previous year. S1 accounted for the work she performed up to February 2019 and felt it was even generous considering that her productivity and communication had a profound impact on the program. Complainant listed several accomplishments which she believed should have merited a higher rating. S1 responded that the cited accomplishments did not warrant a higher rating as they were normal duties she was expected to perform. S1 noted that he had advised Complainant of issues during the mid-year review. Complainant resigned from her position with the Agency in May 2020.2 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. For example, with respect to her 2019 mid-year performance review, the Agency explained Complainant’s progress review cited her unfinished tasks from March and April 2019. There was no dispute that some of the accomplishments that Complainant argued merited mentioning were not known to S1 and were outside of her performance plan. As to her AWOL charge, Complainant was charged with AWOL for one hour due to her refusal to attend a performance appraisal meeting with S1 in October 2019. With respect to not being assigned new work or tasks based, S1 attested that due to Complainant’s refusal to communicate with him, he only assigned her one or two tasks at a time with written instructions via email. Complainant did not dispute that her refusal to communicate with S1 continued into December 2019 and caused him to issue her a Letter of Expectations regarding her communications with him. As to her 2019 performance appraisal, S1 attested that Complainant’s change in productivity and lack of communication “profound[ly] impact[ed]” the [Agency], but her appraisal still accounted for her accomplishments prior to February.” The AJ concluded that the record supported the Agency’s legitimate, nondiscriminatory reasons for the remaining claims. 2 We note that Complainant resigned after the completion of the Agency’s investigation into her formal complaint. In her response to the Agency’s motion for summary judgment, Complainant claimed, for the first time, that her resignation was “forced/involuntary.” The EEOC Administrative Judge (AJ) noted Complainant’s argument and confirmed that she had no jurisdiction to address the claim. The Commission agrees that a constructive discharge claim is not properly before us. 2022000104 7 The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). ANALYSIS AND FINDINGS 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. Here, however, Complainant has failed to establish such a dispute. Construing the evidence in the light most favorable to Complainant, we agree with the AJ that Complainant has not shown she was subjected to a hostile work environment. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations 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. Although Complainant disagreed with management’s perceptions, she did not offer evidence that the stated reasons were untrue or pretextual. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Thus, we find that 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. 2022000104 8 Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, for the reasons stated here, we AFFIRM the Agency’s final action 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). 2022000104 9 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 11, 2022 Date