[Redacted], Alma F., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionSep 2, 2021Appeal No. 2020003489 (E.E.O.C. Sep. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alma F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003489 Hearing No. 416-2019-00037X Agency No. 2003-0629-2017103033 DECISION On May 8, 2020, 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 April 13, 2020, final agency 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. ISSUE PRESENTED The issue presented concerns whether the Agency subjected Complainant to discrimination when it terminated Complainant’s part time position and allegedly failed to correct errors in her pay. 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. 2020003489 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a part-time Staff Physician, AD-15, at the Southeastern Louisiana VA Healthcare System (Southeastern Louisiana VA) in New Orleans, Louisiana. On August 12, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and sex (female) when: 1. On April 28, 2017, the Chief of Staff terminated Complainant’s part-time employment via voicemail; and 2. On May 5, 2017, Complainant became aware the Administrative Officer did not submit an overtime pay correction from February 5, 2011 through April 28, 2017. On September 29, 2017, the Agency issued Complainant a Notice of Partial Acceptance, accepting claim 1 for investigation. However, the Agency only partially accepted claim 2. The Agency found that Complainant had failed to raise the events between February 2011 through March 13, 2017, within the regulatory 45-day time limit. As such, the Agency advised Complainant that it would only investigate claim 2 for the period from March 14, 2017 through April 28, 2017. The Agency then commenced an investigation into Complainant’s EEO complaint. During the EEO investigation, the assigned EEO Investigator contacted Complainant to interview her for the investigation; however, Complainant declined to be interviewed because she was scheduled to undergo mediation to try to resolve her pay issues. When repeated attempts to interview Complainant failed, the EEO investigator closed the investigation after only interviewing the responsible management officials. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On July 25, 2019, the AJ assigned to the matter informed the parties via email that the initial conference would occur by telephone on August 19, 2019. In relevant part, the AJ sent the notice to the email address that Complainant provided in her formal complaint. When Complainant failed to appear at the initial conference, the AJ issued a show cause order via email on August 21, 2019, directing Complainant to show cause as to why sanctions should not be imposed. On August 23, 2019, Complainant responded via email, stating that she did not receive the notice. Complainant asked the AJ to call her to schedule the initial conference. The AJ ultimately rejected Complainant’s explanation on the grounds that he had sent the notice to the email address that Complainant previously provided. Consequently, the AJ remanded the complaint to the Agency for the issuance of a final decision on the merits of the complaint. 2020003489 3 On April 13, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Due to Complainant’s failure to provide an affidavit during the EEO investigation, the Agency relied exclusively on the information gathered from the EEO Counselor’s Report. Having reviewed the entire record, the Agency determined that the named responsible management officials had legitimate, nondiscriminatory reasons for taking the alleged actions. With regard to claim 1, the Agency found that the Chief of Staff of the Southeastern Louisiana VA told Complainant that her services were no longer needed because Complainant worked only 20 hours per week, and the hospital system needed a physician who could perform different types of surgeries and had the flexibility to work longer hours. For claim 2, the Agency noted that the Administrative Officer averred that Complainant was paid for 20 hours per week, regardless of whether she worked the full 20 hours. The Administrative Officer stated that for the weeks when Complainant worked more than 20 hours, Complainant had to submit an additional timesheet indicating the number of unscheduled hours worked so that Complainant’s timesheet could be amended. The Administrative Officer emphasized that the problems with Complainant’s timesheet were due to Complainant’s failure to properly request payment for the unscheduled hours. Though the Agency attempted to determine whether Complainant could demonstrate pretext, the Agency found that the limited record hindered Complainant’s ability to demonstrate pretext. The Agency ultimately concluded that Complainant could not prove her allegations of discrimination. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant initially challenges the adequacy of the EEO investigation. In this regard, Complainant maintains that she was never “notified about [the] investigation nor was [she] asked to provide testimony.” Complainant further emphasizes that she had asked the AJ2 to call her whenever there was an incoming important email, as she did not check her email every day due to her “dumb phone.” Complainant asserts that due to the AJ’s failure to call her, she did not check her email until the day after the initial conference. Complainant further asserts that the initial conference should have been scheduled via certified mail, not by email. As for the merits of the Complainant, Complainant asserts that the Chief of Staff never told her that the reason for her termination was due to the Agency’s need for a physician who could work longer and more flexible hours and perform different types of surgeries. To the contrary, Complainant maintains that she had always asked for more hours and had even assisted in training her first level supervisor on robotic surgery. Complainant reasons that her supervisor wanted to replace her so that he could hire a female faculty member from Tulane University whom he perceived as subservient to him. As for claim 2, Complainant asserts that the Administrative Officer was not telling the truth when he stated that Complainant had failed to turn in her corrected timesheets. 2 Complainant’s appellate brief states that the “EEOC Counselor” failed to notify her about the initial conference; however, the probative evidence suggests that Complainant was referring to the “AJ.” 2020003489 4 In this regard, Complainant maintains that during the week of October 16, 2017, she and the Administrative Officer reviewed all of her timesheets, and they both signed “off on all of them.” Though Complainant maintains that the Administrative Officer was not telling the truth, Complainant emphasizes that she never accused the Administrative Officer of discrimination.3 The Agency opposes the appeal and requests that the Commission affirm its final decision. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Dismissal of Hearing Request Preliminarily, we shall address the AJ’s decision to dismiss Complainant’s hearing request as a sanction for Complainant’s failure to attend the initial conference. As discussed above, Complainant asserts on appeal that she did not receive the AJ’s email until the day after the initial conference because the AJ failed to call her and did not send notice of the initial conference via certified mail. As a general matter, we note that the Commission affords its AJs broad discretion to conduct hearings, manage discovery, and determine whether to admit evidence, issue sanctions or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614.109. Here, the record reflects that the AJ notified Complainant on July 25, 2019 via email that the initial conference would occur on August 19, 2019; however, Complainant allegedly did not check her email until August 20, 2019, as her “dumb phone” limited her ability to check her email account. Having reviewed the record, we find that the AJ did not abuse her discretion in dismissing the hearing request, as we agree with the AJ that Complainant’s professed inability to regularly check her email due to her “dumb phone” is insufficient to constitute good cause for missing the initial hearing conference. 3 Complainant states the following: “You also inferred that I was claiming discrimination against [the Administrative Officer]. I never did this.” See Complainant’s appellate brief at 1. 2020003489 5 We note that the Commission has previously upheld an AJ’s dismissal of a hearing request for failure to attend a scheduled initial conference. See Cornell S. v. Dep’t of Agric., EEOC Appeal No. 0120180632 (Sept. 27, 2019) (affirming the AJ’s dismissal of complainant’s hearing request for failure to attend the initial conference). To the extent Complainant believes that the AJ improperly served her by email, we acknowledge that our complaint processing regulations at 29 C.F.R. Part 1614 do not expressly address or define service by electronic mail; however, the record here reflects that Complainant provided her email address as one method of contacting her. Had Complainant wished to receive only paper mailings, Complainant should have updated her contact information to reflect her preference. Alisia M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120182778 (Feb. 26, 2019) (finding that AJ did not abuse her discretion in dismissing the hearing request for failure to attend initial conference, as the record showed that complainant did not receive notice of the initial conference due to her failure to update her contact information). Given the facts in this case, we find the dismissal of Complainant’s hearing request to be fully within the AJ’s discretion. In reaching this conclusion, we acknowledge that the Commission has previously issued decisions finding the dismissal of a hearing request for failure to attend an initial conference to be too harsh of a sanction; however, we note that in those cases, the Commission found extenuating circumstances that made the imposition of such a sanction unwarranted given the facts in the case. See, e.g., Georgianne B. v. Dep’t of Agric., EEOC Appeal No. 0120181591 (Feb. 27, 2020) (finding dismissal of hearing request for missing initial conference to be inappropriate, where the record showed that the case had been reassigned to a new AJ, and the parties were not notified of the reassignment). We find such extenuating circumstances to be absent in this case. EEO Investigation We are also disinclined to find the EEO investigation to be inadequate, particularly in light of Complainant’s own failure to submit an affidavit. While we are mindful of Complainant’s contention that the EEO Investigator never asked her to provide an affidavit, we find that her contention is contradicted by emails between the EEO Investigator and Complainant, which show that Complainant initially agreed to be interviewed on March 5, 2018, but ultimately did not show. ROI at 97-98. Though the interview was rescheduled to March 7, 2018, Complainant again failed to appear. Id. at 101. We find that these records persuasively establish that Complainant was not denied the opportunity to provide an affidavit, and that the Agency’s failure to obtain an affidavit was based solely on Complainant’s failure to provide one. Given these circumstances, we will not remand this matter for either a hearing or a supplemental investigation. See McCombs v. U.S. Postal Serv., EEOC Appeal No. 01A52069 (Apr. 14, 2005) (finding investigation to be adequate despite the lack of an affidavit from complainant, as the record showed that complainant failed to provide an affidavit), req. for recons. den. EEOC Request No. 05A60427 (Aug. 22, 2006). 2020003489 6 Disparate Treatment We turn now to the merits of the complaint, concerning Complainant’s allegation that the Agency engaged in discrimination when the Chief of Staff terminated her employment via voicemail and when the Administrative officer failed to submit overtime pay corrections, thereby affecting her pay. For Complainant to prevail in a claim of disparate treatment, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination based on race and sex, we find that the Agency has articulated legitimate, nondiscriminatory reasons for terminating Complainant’s part time position. As reflected in the record, the Chief of Staff terminated Complainant’s appointment because the Agency needed a physician who could work longer, more flexible hours, and perform more types of surgeries. With regard to Complainant’s pay, the Administrative Officer maintained that he did in fact submit timecard corrections for Complainant. In arguing pretext, Complainant disputes the Agency’s explanation and maintains on appeal that she had requested more hours and was even more qualified than her supervisor (Chief of Gynecologic Services). She reasons that the Agency terminated her so that her supervisor could hire a subservient female physician to replace her. Complainant also disputes the Administrative Officer’s claim that he submitted timecard corrections; however, she emphasizes that she never accused the Administrative Officer of discrimination. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that she was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its action for terminated Complainant’s employment. 2020003489 7 We are unpersuaded by Complainant’s evidence of pretext, as we find Complainant’s attempts to rebut the Agency’s explanation to be speculative and unsupported by the record. Consequently, we conclude that Complainant cannot prevail on claim 1. As for claim 2, even if we assume arguendo that the Administrative Officer was not telling the truth, we still find that Complainant cannot prevail on her claim, given her assertion that she has never accused the Administrative Officer of discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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. 2020003489 8 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. 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 2, 2021 Date Copy with citationCopy as parenthetical citation