[Redacted], Alene S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 13, 2022

Appeal No. 2021000549 (E.E.O.C. Apr. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alene S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021000549 Hearing Nos. 560201900296X, 560202000082X Agency Nos. 200J06572018105823, 200J0657201903925 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a September 29, 2020, Final Agency Decision (“FAD”) concerning an 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 Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Inpatient Psychiatric Nurse (RN), Level II, 51 North, at the Jefferson Barracks Veterans Administration Hospital in St. Louis, Missouri. Complainant filed two formal EEO complaints (“Complaint 1” and “Complaint 2”), alleging discrimination by the Agency, on the bases of race (white/Caucasian), sex (female), age (56), and 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. 2021000549 2 Complaint 1 1. From May 2008 through present, she was subjected to harassment/a hostile work environment to include the following incidents: a. On May 5 and 6, 2018, her coworker (“C1”) accused Complainant of interrupting her while she (C1) was talking to a patient, and of being argumentative, b. Her supervisor (“S1”) assigns her more challenging units, c. On August 10, 2018, S1 encouraged her to transfer to another, more difficult unit, and, d. On August 12, 2018, another coworker (“C2”) put her in charge of a unit even though C2 was originally scheduled to be in charge. 2. On January 3, 2019, she was issued an admonishment, and, Complaint 2 3. From March 2019 through present, she was not scheduled for weekends (differential pay). The Agency accepted the complaints and conducted separate investigation. Claims 2 and 3 were accepted as part of the hostile work environment alleged in Claim 1, and as independent claims of disparate treatment. The complaints were later consolidated for continued processing. The record developed during the investigations showed that Complainant’s first level supervisor (“S1”) (female, mixed race (African-American, Native American, Caucasian, age 46) is a Nurse Manager (Nurse III) at 51 North. Complainant’s second level supervisor (“S2”) (female, mixed race (African-American, Native American, age 44) Associate Chief Nurse Mental Health. Complainant’s third level supervisor (“S3”) (female, white, age 59) is the Associate Director, Patient Care Services (Nurse V). At the time of the alleged events, Complainant had the second highest seniority in her unit, having worked for the Agency for approximately 13 years, 10 of which at 51 North, Unit 2 (“51- N2”). Yet, Complainant asserts that two of her younger coworkers, C1 (African-American) and C2 (Asian) who had only worked for the Agency for approximately 7 years, consistently received preferential treatment with respect to assignments and scheduling. In or around late 2015, Complainant’s former supervisor removed her from the schedule she held for 7 years, so she went from working every weekend, to every other weekend. 2021000549 3 Complainant asserts that since then, the weekend shift that was once part of her regular schedule is now staffed by employees with less seniority, particularly C1 and C2, working overtime. Complainant raised the denied weekend schedule in an EEO Complaint she initiated in 2016 (“2016 Complaint”). The 2016 Complaint also alleged that C1 and C2 were subjecting her to workplace bullying, and Management failed to take appropriate action.2 S1 recalls that when she became Complainant’s supervisor in November 2016, Complainant asked to be scheduled every weekend. S1 declined because at the time, RNs were assigned to specific units. Over the next few years, the Agency reconfigured the schedule from 8 to 12 hour shifts, and RNs began getting scheduled to different units interchangeably within 51 North. In October 2017, Units 1 and 3 of 51 North merged/closed to become part of 51 North 2. Erroneously believing that the merge meant schedules would be “redone” Complainant raised the issue of weekend shifts with S1 again. This time S1 told Complainant that she could be scheduled every weekend so long as she found a co-worker willing to work only weekdays. Complainant could not find a coworker who would do this, but then noted that four employees (1 female, African-American; 3 male, Caucasian) who worked every weekend prior to the merge still worked every weekend. Complainant determined that there were not enough employees working only week days to account for their schedules, and that S1 had imposed this additional requirement only on Complainant. These matters were also included in the 2016 Complaint. S1, C1, and C2 all testify that they were aware that they were named in the 2016 Complainant, and that it was open throughout the relevant time frame for the events in the instant complaint. Admonishment On August 12, 2018, Complainant arrived at work, and found her name highlighted on the scheduling sheet, indicating that she was the assigned charge nurse. Complainant was certain when she left work on August 10, 2018 that she was scheduled as charge nurse for August 11, 2018 and C2 was charge nurse on August 12, 2018. The two nurse supervisors (“NS-1” and “NS-2”) who were present assured Complainant that they had not changed the schedule. Complainant said she believed C2 made the change as retaliation for Complainant taking FMLA leave on August 11, 2018. She brought the schedule to C2 and publicly asked her whether she changed the schedule. C2 denied making the change, remarking that she had been assigned charge nurse for the past few days. Complainant stated that she printed a copy of the schedule as it was written on August 10, 2018, but had left it at home, and, as she could not prove that C2 changed the schedule, she went ahead and worked as charge nurse. 2 Alene S. v. Dep’t of Veterans Affairs, Appeal No. 2019003236 (Sept. 15, 2020) (affirming FAD determination that Complainant did not prove, by a preponderance of the evidence, that the Agency’s proffered legitimate nondiscriminatory reasons for its actions were pretext for discrimination or retaliation) EEOC Hearing No. 560201800006X (withdrawn, requested FAD), Agency No. 200J06572016105211 (Formal Complaint filed Dec. 13, 2016). 2021000549 4 Following the incident, S1 collected Reports of Contact (“ROCs”) from Complainant, C2, NS-1 and NS-2. Another witness (“W1”) who was present declined S1’s request for a ROC, explaining that he did not want to get in the middle of what he understood to be an ongoing conflict between Complainant and C2. Going forward, S1 began using bold font to identify the scheduled charge nurse, as Complainant pointed out that the highlighter was very faint when the schedule was copied, making it easy to change the assigned charge nurse. On November 16, 2018, Complainant received a Proposed Admonishment for inappropriate conduct, based on the August 12, 2018 incident. Complainant was permitted to review the ROCs S1 obtained. S1 included a ROC she completed on W1’s behalf, dated over a month after the incident. On behalf of W1, S1 stated, among other things, that Complainant, upon finding out she was scheduled as charge nurse, “stormed” out of the office, and looked “flustered.” The ROCs submitted by C2 and NS-2 describe Complainant as so upset that she was “shaky” or “shaking,” and that she “accused” C2 of changing it. NS-1’s ROC also characterized Complainant as “accusing” C2 of making the change, and that upon seeing the schedule, Complainant became “extremely upset and acting very inappropriately” stating that she “reassured” Complainant twice that neither she nor the other NS-2 changed the schedule. NS-1 said that, afterward, C2 came to the office “upset and concerned about working with [Complainant.] The entire situation created a very stressful environment. Complainant, and her union representative, met with S3 and verbally responded to the charge of inappropriate conduct. They strenuously objected to the ROC S1 made on W1’s behalf, but S3 indicated that such ROCs from supervisors are considered acceptable evidence. Complainant explained that S1, C2, and NS-2 were all aware that she named them in an active EEO complaint, and, as retaliation, submitted ROCs with exaggerated accounts making Complainant’s conduct seem worse than it was. She also alleged that they “coached” NS-1, who had no connection to Complainant’s EEO activity, to do the same. On December 6, 2018, S3 issued the Admonishment, which Complainant and her union representative signed on January 3, 2019. In her testimony, and in the Admonishment S3 states that she considered Complainant’s verbal response in rendering the decision. Yet, the Admonishment characterizes Complainant as “grabbing” the assignment sheet, “accusing” her coworker, and “storming” out of the office. The Admonishment also erroneously claims that Complainant said she made a copy of the schedule on August 10, 2018 “because [she] felt this [schedule change] was going to happen.” Complainant concedes that she made a copy of the schedule for her personal use, she was not happy when she saw she was the assigned charge nurse, and she believed C2 changed the schedule. However, she firmly and consistently disputes that she was “visibly” upset, or that she “accused” anyone of changing the schedule. Denied Weekend Schedule According to S1, who is responsible for scheduling 51 North, all RNs on 51 North Unit 2, including Complainant, were scheduled for one weekend shift per pay period (two weekends per month). S1 testifies that she bases the schedule on staffing needs, in consultation with S3. 2021000549 5 Also, scheduling and overtime must comport with the Master Agreement between the Agency and the Union, Public Law 2645 Sec. 7456A, and Agency policies. In addition, S1 and S3, at Complainant’s request, have made an effort to ensure that she and C1 are not scheduled together. In March 2019, S1 changed the schedules of the four Unit 3 RNs (3 male, Caucasian, 1 female, African-American) who were scheduled every weekend, for one weekend per pay period like the rest of the 51 North RNs. Complainant recalls that one of the male nurses told her that the schedule change was due to her EEO complaint. Emails in the record reveal that in in February and March 2019, S1 and S3 were contacted by an EEO Investigator with questions about the 2016 Complaint, including Complainant’s allegation of discriminatory scheduling. Starting with the March 17, 2019, pay period, Complainant noticed that in addition to C1’s usual weekend night shift, scheduled every other weekend opposite Complainant’s, C1 was also scheduled for a day shift on her “off” weekends. Over the next several months, Complainant observed that not only was C1 consistently scheduled for additional weekends, she was regularly scheduled for more than one shift per weekend. Complainant saw on a June 2019 schedule that C1 was scheduled for “overtime” over a month in advance. Complainant initiated Complaint 2 with an EEO Counselor, however there is no evidence that S1 or any other Management official was notified about this complaint until October 2019. S1 and S3 both insist that C1, like the other 51 North RNs, is scheduled for one weekend per pay period, and attribute any additional weekends on her schedule to C1 volunteering for overtime. Both maintain that all 51 North RNs have the opportunity to volunteer for overtime. Although Complainant’s seniority would give her first choice over C1 for any new schedules or overtime, she was only notified of two weekend overtime opportunities between March and August 2019, while C1 worked nearly every weekend during this time. Complainant contends that S1 is using the label of “overtime” to hide the fact that C1 is working every weekend as her regular schedule. Complainant points out that overtime is typically offered in response to situational factors, such as the number of patients admitted to units that overflow to 51-N2. C1`s weekend “overtime” shifts are scheduled in advance, before a need would typically be identified. Additionally, under the Master Agreement, overtime opportunities must be granted based on seniority and shifts worked that pay period. The majority of the weekend “overtime” shifts awarded to C1 were not offered to other RNs or Complainant, who had more seniority, even where, in multiple instances, C1 appeared to be scheduled to work four consecutive 12 hour shifts, a violation of Agency policy. According to Complainant, retaliatory and discriminatory intent can be inferred because of the sheer amount of weekend shifts C1 was assigned, C1 is a different race and age than Complainant, and based on timing. C1’s overtime weekend shifts corresponded with S1 taking weekend shifts from four employees (presumably) as a result of Complainant’s EEO activity. 2021000549 6 At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant requested a hearing but subsequently withdrew her request and requested a FAD. The AJ remanded the matter to the Agency, which then issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 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”) 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”). Dissatisfaction with EEO Investigation & Additional Evidence (Complaint 1) The regulation under 29 C.F.R. § 1614.108(b) requires the agency to create an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. When creating an “appropriate factual record” an EEO Investigator is not necessarily obligated to pursue all of a complainant’s suggestions regarding how the investigation is conducted. See, e.g. Sid E. v. Dep’t of Transport., EEOC Appeal No. 2019002597 (Sept. 22, 2020). Rather, an “appropriate factual record” is “one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” § 1614.108(b). The complainant, upon receipt of the ROI, is provided an opportunity to cure any defects in the record by either notifying the agency (in writing) of any perceived deficiencies in the investigation or requesting a hearing before an AJ. See EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. On appeal, Complainant asserts that the ROI for Complaint 1 (“ROI-1”) is not impartial, as the Investigative Summary contains a running commentary from the EEO Investigator, in the form of “Investigator’s Notes” reflecting conclusory opinions and bias about the evidence of record. Additionally, Complainant also asserts that the EEO investigator exhibited bias through carelessness, as the Investigative Summary for ROI-1 contains “easily verifiable” factual errors, such as the length of her employment. In addition, the EEO Investigator failed to pursue witness testimony from W1, the “only neutral witness” to the events of August 12, 2017. She also notes that unlike the EEO Investigator assigned to Complaint 2, the EEO Investigator for ROI-1 failed to provide her with an opportunity to submit a rebuttal statement to witness affidavit testimony. 2021000549 7 It does not appear Complainant formally notified the Agency’s EEO Director of her concerns regarding ROI-1. Rather than take advantage of the hearing process, Complainant filed motion to withdraw her hearing request, accompanied by a motion to include a rebuttal statement to ROI-1 with attachments, for consideration when issuing the FAD. Complainant argues that the Agency erred when it based its FAD on ROI-1 without considering her rebuttal statement and attachments. We previously determined, in another complaint raised by Complainant, that the Agency did not err when its FAD did not address an amendment Complainant submitted to the AJ before withdrawing her hearing request in favor of a FAD because there was no indication in the record that the AJ granted Complainant’s motion to amend. Alene S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019003236 (Sept. 15, 2020). Likewise, the AJ in this case did not address the motion to add Complainant’s rebuttal statement and attachments to the record for Complaint 1. (When the motion was submitted, the AJ was no longer the deciding official as Complainant withdrew her hearing request). As the rebuttal and attachments were not contained in the ROI, the Agency did not err when it did not address these new documents in its FAD. Upon thorough review, we agree with Complainant’s assessment that the EEO Investigator for ROI-1 erred when she did not provide Complainant an opportunity to submit a rebuttal statement. Additionally, some of the “Investigator’s Notes” within the Investigative Summary for ROI-1 give the appearance of bias in favor of C1’s account of events. However, these notes, as well as several factual errors Complainant identifies in the Investigative Summary for ROI-1, could be verified elsewhere in the record, and ultimately were not determinative of whether Complainant was subject to discrimination or retaliation. Notwithstanding the referenced deficiencies, the Investigative Summary for ROI-1 correctly identified and thoroughly discussed the relevant issues, including articulating Complainant’s account of events. Moreover, the EEO Investigator for ROI-1 made an effort to obtain the relevant evidence, including some of the witness testimony and documents Complainant specifically requested. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. EEO MD-110, Ch. 9, § VI.A.3. The Commission recognizes that while the purpose of discovery in the hearing process is to perfect the record, it is not a substitute for an appropriate investigation, and not every complainant will opt for a hearing. Cox v. Soc. Sec. Admin., EEOC Appeal No. 0720050055 (Dec. 24, 2009). In acknowledgement of Complainant’s concerns of bias within ROI-1, the Commission exercises its discretion to consider the rebuttal statement Complainant submitted for ROI-1 and signed statement she obtained from W1. Otherwise, the Commission concludes that ROI-1 contains an appropriate factual record to allow for a determination on whether discrimination and/or retaliation occurred as alleged. 2021000549 8 Disparate Treatment (Claims 2 and 3) A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied, EEOC Request No. 0520120603 (Jan. 31. 2013). Pretext can be established where the complainant offers evidence of such “weaknesses, implausibility, 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.” See Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014), see also, e.g. Adalberto S. v. Dep’t of the Army, EEOC Appeal No. 0120170392 (Oct. 12, 2018) citations omitted. 2021000549 9 Among other things, indicators of pretext may include discriminatory statements attributable to those responsible for the personnel action that led to the filing of the complaint, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. See Mellissa F. v. United States Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). To the extent that Complainant’s appellate arguments concern witness credibility, Complainant withdrew her request for a hearing before an AJ, and as a result we do not have the benefit of an AJ's credibility determinations of the witnesses in this case. See, e.g. Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (Complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made), Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that a coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an AJ did not make credibility determinations). In withdrawing her request for a hearing before an EEOC AJ, Complainant declined the opportunity to cross examine witnesses. Tommy O. v. U.S. Postal Serv., EEOC Appeal No. 0120152090 (June 8, 2017). Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. Claim 2: Admonishment The Agency’s legitimate, non-discriminatory reason for issuing the Admonishment for “inappropriate conduct” was Complainant’s actions on August 12, 2018. As the deciding official, S3 testified that she opted to uphold the admonishment, initiated by S1, after reviewing the ROCs and Complainant’s oral response to the November 7, 2018 Notice of Proposed Admonishment. Complainant offers evidence that calls into question the manner in which her actions were characterized, but ultimately she does not establish that S3’s decision was based on a “demonstrably discriminatory motive” or “unreasonable” business judgment. Complainant argues that her actions on August 12, 2018 were not “inappropriate,” as she simply picked up the schedule, asked a question in a normal tone of voice, then briskly (her usual pace) left the room. She points out that it is not necessarily “inappropriate” for a nurse to voice surprise at a change in schedule or that she believed there had been a “mistake” in the schedule. She also offers evidence in the form of a signed statement from W1 disputing S1’s account of their conversation and stating that Complainant is “soft spoken” and typically walks at a brisk pace. Complainant reasons that the Admonishment was retaliatory because it was raised by S1, and because S3 upheld the Admonishment based on ROCs written by S1, C2, and NS-1, who were all aware that Complainant named them in her pending EEO complaint. We note that in addition to using language that described Complainant’s actions as angry and accusatory, the ROCs written by S1, C2, and NS-1 also include incendiary comments alluding to unrelated, additional wrongdoing by Complainant. At the end of his ROC, NS-1 generalized, “[Complainant] creates a hostile work environment by making false accusations.” C2 stated that Complainant had subjected her to an “ongoing hostile work environment” since 2012. 2021000549 10 W1 (by S1’s account) “did not feel comfortable filling out a ROC because he did not want [Complainant] to retaliate against him.” At the time S3 reviewed these ROCs, she would not have known that W1 did not support S1’s account, as Complainant did not obtain W1’s statement until months after the admonishment was issued. However, NS-2’s ROC also recounted that Complainant was “visibly upset” and interpreted her conduct as “inappropriate.” She also noted the impact of Complainant’s conduct on C2, who voiced concern about working with Complainant that evening. NS-2 had no involvement with Complainant’s pending EEO complaint, and there is no evidence to support Complainant’s speculation that S1, C2, and/or NS-1 “coached” NS-2 to submit a false statement. Complainant’s own ROC and testimony confirm that she conveyed to her colleagues that she believed C2 changed the schedule to make her charge nurse. Complainant does not deny asking multiple times, and telling her coworkers that she printed the correct schedule in advance, but could not find it. It also was no secret among staff and management that Complainant had long held objections to S1’s scheduling practices, and had a history of conflict with C2. ROCs reflecting the perception that Complainant acted “upset” and “accusatory” are not so implausible as to evince pretext. Complainant has not shown, by a preponderance of the evidence, that S1 and S3’s business judgment regarding the admonishment was “unreasonable.” Even if the wording of the Admonishment is based on ROCs from S1, C2, and NS-1, the context and information available to S3 supports that Complainant’s comments and conduct on August 12, 2018, could reasonably be seen as inappropriate or accusatory, and in turn, detrimental to a work environment, particularly for a hospital setting, where staff rely on each other for safety. Claim 3: Denied Weekend Schedule The unfairness of a situation is not in itself sufficient to establish pretext for discriminatory or retaliatory motivation. Stuart M. v. United States Postal Serv., EEOC Appeal No. 2020004401 (Jan 5. 2021). A complainant still must demonstrate that more likely than not, an agency’s proffered reason for its actions was designed to conceal prohibited discrimination. Markey v. Dep’t of Transport., EEOC Appeal No. 0120081150 (Jul. 22, 2009) citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (It is not sufficient "to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination”). The Commission notes that employment decisions based on favoritism are not unlawful, as long as they are not premised on prohibited bases. Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986), McClinton v. Dep’t of the Air Force, EEOC Request No. 05921032 (May 6, 1993), see, e.g. Kendall C. v. Dep’t of Agriculture, EEOC Appeal No. 0120180161 (Nov. 26, 2019) (evidence that a younger employee, selected for promotion over the complainant, who had more professional experience, was the supervisor’s “favorite” and had been “groomed” for the position, not sufficient to establish that more likely than not the selection was motivated by age discrimination), Morris v. Dep’t of the Interior, EEOC Appeal No. 0120091943 (Apr. 4, 2011) (complainant failed to establish denial of performance award based on sex discrimination where 2021000549 11 supervisor favored a particular branch, and did not issue awards to men and women, including complainant, in other branches regardless of demonstrably superior performance); but see, Balderas v. Dep’t of Justice, EEOC Appeal No; 0120110222 (Sept. 28, 2012) (complainant established by a preponderance of the evidence that supervisor’s scheduling based on “popularity and favoritism” was pretext for sex discrimination, where the supervisor “normally picked her friends for [desirable] assignments, and her friends were male,” and the supervisor’s “blatantly sexist comments” created a “strong inference of sex discrimination”). In the instant complaint, Complainant calls the Agency’s legitimate nondiscriminatory reason for C1’s disproportionate number of scheduled weekend shifts into question by providing a meticulous analysis of C1’s schedule. Copies of the schedule between March and August 2019 reflect that C1 worked shifts on both weekends per pay period more often than not. Additionally, the Agency’s proffered evidence that all nurses were provided the opportunity to volunteer to pick up overtime shifts, consists of several emails and printed signup sheets containing weekend and weekday overtime hours. However, the dates do not cover even half of the additional weekend shifts C1 worked over this approximately 5-month time frame. However, while the data demonstrates that C1 has received far more weekends than Complainant, despite Complainant’s requests to be scheduled every weekend, and her higher seniority, it does not establish that the schedule was motivated by discriminatory or retaliatory intent. Complainant’s formal complaint alleges, “now [S1] is scheduling one particular, younger, African American female nurse, [C1] to work every weekend under the pretext of overtime. Yet, this overtime was never posted as available to others…” emphasis added.” Complainant makes a point of noting that S1 is not “allowing” her or the male nurses previously scheduled for those weekends to work, in favor of scheduling C1.When identifying the dates where C1 appears on the schedule for “overtime” a month in advance, Complainant observes, “no one else appears to be scheduled like that” emphasis added. When Complainant points to areas in the schedule where C1 is scheduled beyond the maximum weekly hours allowed, she notes, “there does not appear to be a shortage of RNs many of the days [C1] is scheduled. In fact, there appears to be an over-abundance of nurses some days.” In other words, S1 has favored C1 to such an extent that she is allegedly getting scheduled for additional hours when her presence is not needed. Complainant states that C1 specifically is unlikely to get sent home in such a situation because the Nursing Managers are “preferential” in assigning overtime, and they have allegedly demonstrated a preference for C1. She raises this point again on appeal and in the record, Complainant expressly states, “[t]here is no evidence that the additional shifts given to [C1] were offered to others. In some cases, it seems like there is an excessive number of licensed staff on duty, like her overtime may not really be necessary.” Complainant concludes, “[i]t just appears that [S1] is once again fettering the nests of those she chooses, finding a way around the law, SOP and the Master Agreement by using the pretext of overtime. [S1] is discriminating. She is not allowing the older Caucasian nurse with more seniority to work every weekend.” Emphasis added. Merely tacking on an assertion S1’s displays of favoritism for C1 were motivated by discriminatory or retaliatory animus is insufficient to establish pretext. 2021000549 12 On appeal, Complainant alternates between generalizations about issues previously litigated in the 2016 Complaint and describing favorable treatment toward C1 specifically. She asserts that pretext can be inferred because “Management has discriminated against Complainant in the past,” and that S1 in particular has a history of discriminatory scheduling. In her rebuttal statement to S1’s testimony, Complainant refers to C1 as “the most recent example” of discriminatory scheduling. However, the previous “examples” are outside the scope of the instant complaint. Not only did they occur before the relevant time frame, they describe actions taken under different circumstances, including, (depending on the example) different supervisors, different schedule configurations, and the 51 North merger. Moreover, these alleged discriminatory events were litigated in the 2016 Complaint. In order to adopt Complainant’s interpretation of events, the Commission would have to disregard its own prior decision. The same holds true for Complainant’s repeated assertion, “there is no other reason to explain giving all these other nurses schedules working every weekend but not me other than discrimination for the purpose of reprisal.” We emphasize that Claim 3 concerns the weekend shifts between March and August 2019. The only nurse Complainant discusses with respect to the relevant time frame is C1. When reviewing the time frame at issue, Complainant’s language indicates that S1’s preferential treatment toward C1 was to the detriment of all nurses, not just Complainant or individuals who shared Complainant’s protected categories. Reviewing all of the evidence of record, Complainant has not shown that S1 is more likely than not, motivated by discrimination (as opposed to favoritism) when she scheduled C1 every weekend while denying Complainant a weekend schedule or opportunity to volunteer for those shifts as overtime. Harassment 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 membership in a protected class and/or prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). The Commission has repeatedly found that allegations of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Dep’t of Health and Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). It is also well established that routine work assignments, instructions, and admonishments are all “common workplace occurrences” that do not constitute harassment. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations omitted. 2021000549 13 For Claims 1(a) and 1(d), given the conflicting statements in the record, there is insufficient evidence to establish that the events on May 5 and 6, 2018 and on August 12, 2018 occurred as alleged because we do not have the benefit of an AJ’s credibility determination.3 Even assuming, for the sake of argument, that the events in Claims 1(a) and 1(d) happened exactly as Complainant describes, both are isolated incidents that occurred months apart and involved different coworkers. Significantly, the record reflects that S1 took immediate and appropriate action to prevent the harassment from happening again. With respect to Claim 1(a), S1, at Complainant’s request, adjusted the schedule to minimize Complainant’s contact with C1. As for Claim 1(d), S1, based on Complainant’s concerns that the charge nurse designation could easily be revised, began using bold font instead of highlighter to indicate charge nurse assignments, which Complainant acknowledges is an effective solution. The events in Claims 1(b) and 1(c), describe S1 acting within the scope of her authority as Complainant’s supervisor, to assign duties, and address an ongoing conflict between two of her subordinates. We note that Claim 1(c) refers to one suggestion (a transfer) within a list of ideas S1 emailed to Complainant in an effort to ensure a professional work relationship between Complainant and C1. There is no hint in the record that the suggestion was pursued further, or concrete action was taken. In Homer S. v. Department of Transportation, the Commission determined that the complainant’s supervisor was acting within the scope of his authority when he consistently assigned his “favorite” employee preferable work duties, even though the complainant had more relevant training; and when he issued the complainant a non-disciplinary letter of counseling due in part to the “favorite’s” alleged false accusation that the complainant caused a hostile work environment. EEOC Appeal No. 2019005337 (Aug. 20, 2020) citing Gray, and Dewitt L. v. Dep’t of the Navy, EEOC Appeal No. 0120160682 (May 3, 2016) (While an employee may prefer certain assignments over others, or have a different idea about how operations should be run, “these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day to day operations of an Agency for that of the managers involved”). S1’s alleged actions are not sufficiently severe or pervasive to constitute harassment. See Dewitt L. Claims 2 and 3 will not be considered as part of this harassment analysis because Complainant was unable to show that the Agency’s legitimate nondiscriminatory reasons for the events in these claims were pretext for a discriminatory or retaliatory motive. 3 Complainant’s assertions that Claim 1(a) refers to ongoing harassment by C1, reference events raised in previously litigated EEO actions, and are beyond the scope of consideration for this Decision. Other than the incidents on May 5 and 6, 2018, she offers little beyond generalized assertions, which are insufficient to support a hostile work environment claim. See Michell B. v. United States Postal Serv., EEOC Appeal No. 0120140033 (Mar. 4, 2016), citing Monreal v. United States Postal Serv., EEOC Appeal No. 01A43828 (Jul. 28, 2005). 2021000549 14 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, Complainant has not established, by a preponderance of the evidence, that she was subjected to discrimination or reprisal as alleged. Accordingly, we AFFIRM the Final Agency 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. 2021000549 15 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. 2021000549 16 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 13, 2022 Date