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

Equal Employment Opportunity Commission

Sep 29, 2021

Appeal No. 2020003490 (E.E.O.C. Sep. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alaina P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003490 Hearing No. 470-2018-00235X Agency Nos. 200J-0610-2016103719 & 200J-0610-2017103011 DECISION On May 20, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 22, 2020 final decision (FAD) concerning the above-referenced equal employment opportunity (EEO) complaints 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. BACKGROUND Complainant worked as an Urgent Care Physician, VM-0602-15, at the Northern Indiana Health Care System located in Marion, Indiana. On June 30, 2016, Complainant filed an EEO complaint (Agency No. 200J-0610-2016103719 (Complaint 1)), in which she alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of race (African- American), sex (female), and in reprisal for prior protected EEO activity when: 1. From February 2, 2015 to May 3, 2015, Complainant was subjected to excessive visits to her office by a Primary Care Physician (PCP); 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. 2020003490 2 2. On May 8, 2015, PCP barged into Complainant’s office on two occasions accusing Complainant of being the source of her problems and insulting her; 3. On May 13, 2015, PCP barged into Complainant’s office, raised her voice and told Complainant she took issue with Complainant’s documentation regarding one of her patients; 4. On June 4, 2015, PCP accused Complaint of slandering her and made threatening gestures against her; 5. On June 4, 2015, PCP ordered Complaint to leave her office to look at one of her patients; 6. On June 17, 2015, PCP told Complainant she was weak and useless; 7. On June 19, 2015, PCP barged into Complainant’s office, verbally insulted her, and refused to leave; 8. On June 23, 2015, Complainant was issued a no contact order against PCP; 9. On July 10, 2015, PCP followed Complainant home; 10. On numerous occasions between July 23, 2015, and July 206, PCP parked in front of Complainant’s base housing unit; 11. On August 13, 2015, the Chief of Staff (COS) forced Complainant to work with PCP; 12. On September 11, 2015, Complainant was issued a second no-contact order against PCP; 13. On June 1, 2016, PCP came into Complainant’s office, tried to back her up against the wall, cursed at her, made physical threats, and held her fists up in Complainant’s face; 14. On June 15, 2016, PCP violated Complainant’s no-contact order by stalking Complainant in the parking lot; 15. On July 27, 2016, the Assistant Chief of Staff (ACOS) issued Complainant a written counseling; and 16. Effective August 4, 2016, her health care privileges were summarily suspended. On July 25, 2017, Complainant filed a second formal EEO complaint (Agency No. 200J-0610- 2017103011 (Complaint (2)), in which she alleged that the Agency subjected her to discrimination and a hostile work environment when: 2020003490 3 17. Effective August 4, 2016, Complainant’s health care privileges were summarily suspended; 18. From November 15, 2016 through December 15, 2016, Complainant was charged with being absent without leave (AWOL); and 19. Effective April 28, 2017, Complainant was terminated during her probationary period. The Agency investigated each complaint separately. At the conclusion of each investigation, the Agency provided Complainant with copies of the two investigative reports (IR1 and IR2) and notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The complaints were subsequently consolidated. Complainant initially requested a hearing, but later withdraw her request. On February 1, 2019, the AJ assigned to the matter remanded the complaints for a final agency decision. As a result of a case backlog and a staff shortage, the Agency did not issue its final decision on the two complaints until April 17, 2020. In the decision, the Agency found that Complainant was not subjected to discrimination or reprisal as alleged. The instant appeal followed. In addition to contesting the merits of the Agency’s final decision, Complainant contends on appeal that she is entitled to a default judgment as a sanction for the Agency’s year-long delay in issuing its final decision. 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, at Chapter 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”). Complainant’s Request for Default Judgment as a Sanction for Untimely Issuance of FAD We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. 2020003490 4 Here, we find that the Agency failed to comply with the Commission's regulations. The record reveals that the AJ remanded the complaints for a final agency decision on February 1, 2019, following Complainant’s hearing request withdrawal. The Agency conceded that it had taken more than a year to issue its final decision on complaints (1) and (2), but attributed the delay to a significant case backlog and a shortage of staff needed to process those cases. Although the Agency failed to timely issue a final decision as required by our regulations, it did not act in in a manner to warrant the sanction of a default judgment against it. See, e.g. Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016), req. for recon. denied, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency's 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep't of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016) (declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep't of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days)); Anthony M. v. Dep't of the Air Force, EEOC Appeal No. 2019003380 (Sept. 22, 2020). The Commission finds that there is no evidence that the Agency’s delay in this case is attributable to contumacious conduct or bad faith. As such, under the specific circumstances present, we decline to sanction the Agency for its delay in issuing the final decision. While we will not impose a sanction in the present case, we do find the Agency's failure to abide by the regulations reflects negatively on the Agency's support for the integrity of the EEO process. Beatrice B. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019001641 (Sept. 17, 2020) (The Commission declined to issue a sanction where following a supplemental investigation, the Agency delayed in issuing a final decision for over eight months). As a result, we will notify Federal Sector Programs (FSP) which monitors the federal agencies' EEO programs of the Agency's failure to comply with the regulations regarding the timely issuance of final agency decisions. Hostile Work Environment To establish a claim of harassment 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 classes; (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 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). 2020003490 5 The antidiscrimination statutes are not civility codes. 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). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the incidents at issue. Aside from her own bare assertions, Complainant has presented neither declarations, affidavits, or unsworn statements from witnesses other than herself nor documents which establish the existence of any of these indicators of unlawful motive or which contradict or undermine the explanations provided by PCP and COS. The record reflects that the alleged incidents were more likely the result of a contentious working relationship between Complainant and PCP. This was significantly demonstrated by the fact that the COS had to issue two no-contact orders to ensure that Complainant and PCP remained apart and did not interact with one another. In fact, the situation between them had deteriorated to such an extent that in June 2015, PCP was removed as Complainant’s supervisor. IR1 539. Moreover, as Complainant chose to withdraw her hearing request, the Commission does not have the benefit of an AJ's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. On the basis of that evidentiary record, we find that the record does not support Complainant’s claim that she was subjected to a hostile working environment based on her protected classes. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the COS and other management officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Concerning incident (15), the ACOS stated that she issued a written counseling to Complainant and a reprimand for PCP for getting into an altercation in the urgent care facility when patients were present, and that written counseling was not a reprimand but rather was meant to encourage the employee to succeed. IR1 171-72, 540. Regarding incidents (16) and (17), the COS and the ACOS affirmed that Complainant’s privileges were suspended because of her documented failure and outright refusal to provide medical care to patients. IR1 172, 193-94, 541-42; IR2 35-60. 2020003490 6 The COS explicitly stated that although there was an acknowledgment of the difficulties between Complainant and PCP, that situation was not a significant factor in the decision to suspend Complainant’s privileges. IR2 194. With respect to incident (18), in a memorandum dated December 15, 2016, the ACOS informed Complainant that she had been absent from duty between November and December 2015 and was being charged AWOL for that absence. IR2 335. Complainant failed to provide requested documentation to support the absences. With regard to incident (19), in a memorandum dated April 7, 2017, the facility Director notified Complainant that she would be separated during her two-year probationary period, effective April 28, 2017. The COS averred that he had proposed that Complainant be terminated primarily because of her AWOL status and failure to provide documentation for her prolonged unapproved absences. IR2 318-19, 333-34. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Again, as noted above, Complainant has not presented any documents or testimony that would cause us to question the veracity of these individuals as witnesses. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2020003490 7 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). 2020003490 8 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 September 29, 2021 Date