[Redacted], Allene S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionOct 19, 2021Appeal No. 2021003003 (E.E.O.C. Oct. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allene S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003003 Agency No. 2001-0675-2020103672 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 25, 2021, final decision 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 her complaint, Complainant was employed as the Minority Veteran Program Outreach Coordinator at the Orlando VA Health Care System located in Orlando, Florida. Complainant’s first-level supervisor was S1. On May 8, 2020, she filed the instant complaint alleging that she was subjected to a hostile work environment based on reprisal when, on April 20, 2020, she became aware of an unfavorable performance evaluation for FY 2019. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge. 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. 2021003003 2 Because Complainant did not respond to the Agency’s notice, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. According to Complainant, she learned that a performance appraisal with the effective date of September 30, 2019, had been uploaded to her Official Personnel File on April 20, 2020. She maintained that she had not previously seen the appraisal, despite the notation on it stating that she refused to sign it. Complainant stated that in October 2019, she had several back and forth conversations with S1 regarding her difficulties seeing the appraisal, concluding on October 5, 2019, when she received notification that she had declined to sign her appraisal. Complainant argued that these conversations were regarding a mid-year appraisal, which Complainant believed would show her as fully successful but were edited by S1 to show her as unacceptable, and that she could not access her actual end of year review until April 2020. The Performance Plan, issued on August 5, 2018, provided five elements for evaluation. They were Management Support and Outreach, Communication, Customer Service, Administrative Support, and Information Security. Complainant was rated as fully successful in Management Support and Outreach, as well as Information Security. She was rated as unacceptable, however, in the remaining three categories. In the comments in her final review, dated November 1, 2019, S1 wrote that Complainant’s “written reports were often late and inaccurate,” and that emails for outreach events were not returned in a timely fashion. S1 also wrote that videos from one of the events handled by Complainant “shows a lack of ability to handle differences of opinion in a professional manner,” and that Complainant was “not courteous, nor did she make a favorable impression with the presentation.” Finally, S1 indicated that “[certain type of reports] were not submitted in a timely and accurate manner.” S2, Complainant’s second-line supervisor, the Associate Director, signed a concurrence with the unacceptable rating on November 1, 2019. Additional comments in the review noted that Complainant was also told during her mid-year review that she was not meeting the fully successful standard. A summary, written by Complainant’s former supervisor, B1, and concurred with by S1 and S2 noted that several events were missed or had a “last minute rush by other parties” due to Complainant’s failure to timely respond to emails and other communications, and that Complainant failed to engage with the rest of the outreach team despite being instructed to do so several times. Complainant failed to produce a charter for the Outreach Committee, spoke negatively about the Agency, and missed deadlines to turn in reports on several occasions. S1 stated that her appraisal was based on Complainant’s performance in each category. She also stated that she consulted with B1 because she, S1, had not been Complainant’s supervisor for the entire rating period. B1 stated that Complainant’s performance was unacceptable during the rating period, based on the performance standards issued to Complainant at the beginning of the rating period. She also stated that she was on maternity leave at the time of the official rating and did not discuss the rating with Complainant. 2021003003 3 Complainant maintained that she was rated as unacceptable in retaliation for her EEO complaints as well as a Whistleblower action she filed against S1. She noted that she had previously been rated as fully successful in a summary rating that was provided by A1 upon his departure, issued in April 2019, with no comments addressing her performance.2 The Agency noted that, at that time, her job title was Program Specialist. The record also indicates that she was also rated as fully successful in her 2018, appraisal, also with no comments provided. At that time, Complainant’s job title was Veterans Outreach Program Specialist. 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”). To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate 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.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). 2 From 2017 - March 2019, Complainant was supervised by A1; from March 2019 - August 18, 2019, she was supervised by B1; and after August 18, 2019, she was supervised by S1. 2021003003 4 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal for her prior EEO activity,3 we find that the Agency articulated a legitimate, nondiscriminatory reason for why she received an unacceptable rating, i.e., this rating was merited by her performance. We find no persuasive evidence of pretext. Complainant, other than speculation, offered no evidence that her prior EEO activity played any role in the Agency’s actions. Like the Agency, we do not find that prior ratings of her performance by A1 are indicative of her performance under B1 and S1. Employers have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Complainant v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). To the extent that Complainant maintained that her FY 2019 performance rating was an example of harassment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that her unacceptable performance evaluation was motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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. 3 Allegations of retaliation based on whistleblowing activities are not within the Commission’s purview. 2021003003 5 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 request the court to appoint an attorney for you. 2021003003 6 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 19, 2021 Date Copy with citationCopy as parenthetical citation