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

Equal Employment Opportunity Commission

Oct 24, 2022

Appeal No. 2021004523 (E.E.O.C. Oct. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alisia M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004523 Hearing No. 530-2017-00257X Agency No. 2004-0517-2016104290 DECISION On August 6, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 14, 2021, 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. At the time of events giving rise to this complaint, Complainant worked as a Physical Therapist Assistant at the Agency’s Inpatient Rehabilitation Department in Beckley, West Virginia. On September 1, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her based on reprisal for prior protected EEO activity when: 1. on May 27, 2016, the Physical Therapist Contractor (Contractor), yelled and screamed at Complainant while she worked with a patient; and 2. on June 28, 2016, the Human Resource Officer, terminated Complainant during her probationary period. 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. 2021004523 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. On December 30, 2020, the Agency submitted a motion for a decision without a hearing (Motion). Complainant responded, and the Agency countered. On July 8, 2021, the AJ issued the Decision and Order Entering Judgment. Concerning Complainant’s reprisal claim, the AJ noted that although Complainant participated in a mediation to resolve the initial issue with the Contractor, the complaint that gave rise to the mediation lacked an allegation of discrimination on a protected basis. The AJ noted that this was therefore not protected activity under the law. The AJ further determined that Complainant failed to produce evidence of engaging in any protected activity prior to the May 27, 2016, incident. However, assuming arguendo that Complainant did establish a prima facie case, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, that the Contractor was upset that she unwittingly signed off on Complainant’s falsification of time records for insurance purposes, which led to their confrontation. Ultimately, due to Complainant’s falsification of patient records, the Agency terminated her during her probationary period. The AJ determined that despite given the opportunity, Complainant failed to demonstrate that such reasons were pretext. Accordingly, upon review of the Agency’s Motion and the record, the AJ determined that there were no genuine issues of material facts to be resolved at a hearing. The AJ granted the Agency’s Motion requesting a finding of no retaliation. On July 14, 2021, the Agency subsequently issued its final order adopting the AJ’s finding that Complainant failed to prove retaliation as alleged. The instant appeal followed. On appeal, Complainant asserts that the AJ and the Agency have mistakenly determined that she failed to establish a prima facie case of retaliation. Complainant asserts that the communication of her belief that she was subjected to a hostile work environment sufficiently protects her from reprisal. Complainant emphasizes that the allegations of her falsifying time records are false and merely pretext for terminating her. Complainant request that the Agency’s decision be reversed. In response, the Agency reiterates arguments made in its Motion. The Agency argues that Complainant fails to provide any evidence on appeal that would support a reversal of the final Agency decision. The Agency requests that its final decision be affirmed. 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 2021004523 3 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 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 retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. We note that discrimination statutes do not shield a complainant from a myriad of petty slights and annoyances. Rizzo v U.S. Postal Serv., EEOC Appeal No. 01A53970 (Aug. 29, 2005); see also Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784, 35 FEP Cases 601 (E.D. Wis. 1984) (opining that Title VII does not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive”). Additionally, not every unpleasant or undesirable act which occurs in the workplace constitutes an EEO violation. See Shealey v. Equal Emp’t Opportunity Comm’n., EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep’t of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). The Commission also recognizes that ordinary managerial duties, such as taking action in the face of performance shortcomings, are part of normal operational management. Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (June 16, 2017). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing 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 2021004523 4 (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). 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 2021004523 5 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 October 24, 2022 Date