[Redacted], Alycia R., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMar 9, 2021Appeal No. 2020004833 (E.E.O.C. Mar. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alycia R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004833 Agency No. 200J-0550-2019102188 DECISION On July 16, 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 June 11, 2021, final decision (FAD) 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Dietary Worker, WG 4, at the Agency’s Illiana Health Care System facility in Danville, Illinois. On April 2, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian) and disability (Graves Disease & Hyperthyroidism) 2 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. 2 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2020004833 2 1. On June 25, 2018, the Chief, Nutrition & Food Service (CNFS: White/Caucasian, no claimed disability), gave Complainant an Admonishment for being AWOL; 2. On January 25, 2019, Complainant’s Supervisor (S: African American, no claimed disability) formally counselled Complainant about her sick leave usage; 3. On January 29, 2019, CNFS declined to remove an Admonishment from Complainant’s record; 4. On February 28, 2019, Complainant was not selected for the position of Recreation Assistant, under Vacancy Announcement Number VA CBCW- 10373056-FY19-AQ-BU (Position 1); 5. On April 24, 2019, the Supervisory Recreation Therapist (SRT: white, no claimed disability) did not transfer Complainant to the position of Recreation Assistant (Position 2); 6. On May 31, 2019, Complainant was not referred for the position of Recreation Assistant, under Vacancy Announcement Number CBCW-10463286-FY19-CS- BU (Position 3); and 7. On May 31, 2019, Complainant was not selected for the position of File Clerk, under Vacancy Announcement Number CBCW-10466025-FY19-MW-BU (Position 4). We note initially that the FAD listed eight claims in total. Claim 1 in the FAD addressed Complainant being charged with being AWOL and Claim 2 addressed Complainant being given an admonishment for the same incident. We find that the Claims numbered 1 and 2 in the FAD constitute the same claim, and hence we have consolidated them herein as Claim 1. 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). In accordance with Complainant’s request, 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. Specifically, the FAD found that, with regard to Claim 1 (numbered Claims 1 and 2 in the FAD), the matters should be addressed under a harassment theory and that Complainant being charged with AWOL and receiving an admonishment for being AWOL, were not action that were based on Complainant’s protected bases and were insufficiently severe and/or pervasive to constitute harassment. With regard to the remaining claims, the FAD found that Agency officials articulated legitimate, nondiscriminatory reasons for their actions and that Complainant failed to show that such reasons were pretextual. Specifically, with regard to Claim 2 (Claim 3 in the FAD) the FAD found that S averred that he gave Complainant a Formal Counseling about her sick leave usage based on her pattern of abuse which affected employee scheduling. With regard to Claim 3, CNFS averred that he declined to remove the Admonishment from Complainant’s record due to her continuing abuse of leave privileges. With regard to Claim 4, Complainant’s nonselection for Position 1, Agency officials averred that Complainant was the only person interviewed for the position and no selection was made. 2020004833 3 With regard to Claim 5, SRT averred that he denied Complainant’s request to transfer into the position because he wanted to use the interview process and allow multiple candidates the opportunity for the position. With regard to Claim 6, Agency officials averred that no selection was made for the position. With regard to Claim 7, Agency officials averred that Complainant was not among the top three candidates and was not interviewed and that the selectee for the position had a Degree of Applied Science in Medical Office Personnel and was versed in medical terminology, as well as experience working in a health-care clinic. The FAD further concluded that Complainant failed to establish that the Agency’s articulated reasons for its actions were pretextual. 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, 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”). Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). 2020004833 4 For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. We next find that Agency officials articulated legitimate, nondiscriminatory reasons for their actions. With regard to Claim 1, S averred that: I issued the Complainant the AWOL charge on May 26, 2018. Complainant called off sick but did not have enough sick leave to cover the time off. Complainant requested to use annual leave for half the day, since she did not have enough sick leave. Using annual leave to cover sick leave can only be approved if the Director approves it or if a doctor's note was brought in. Complainant's request to use annual leave instead of sick leave was denied because according to the union agreement, Complainant did not have to be granted annual leave if we were short staffed on the day in question, and only had funds to cover the staff we had. If we were overstaffed and granted staff an early release and annual leave we could have granted Complainant annual leave in lieu of sick leave, but that was not the case. CNFS averred that S issued Complainant the Admonishment and that: After taking into consideration the evidence and oral and written response, I decided to uphold the Admonishment, which was a result of being AWOL. Going back to December 10, 2017 up to May 26, 2018, Complainant overused her sick leave privileges without presenting any mitigating circumstances to warrant it. She was issued a Formal Counseling and subsequently an Admonishment for continue misuse of sick leave and AWOL charges. With regard to Claim 2, S averred that he counselled Complainant about her leave usage because a review of her leave record showed “a pattern of unscheduled sick leave with a day off.” With regard to Claim 3, CNFS noted that when Complainant was issued the Admonishment the document stated that "The admonishment will remain in your folder for 2 years, or it may be withdrawn and destroyed after 6 months, depending entirely on your future behavior and attitude." CNFS averred that he denied Complainant’s request to remove the Admonishment after six months because “the abuse of leave privileges that led to the two AWOL charges, resulting in the admonishment had continued.” With regard to Claim 4, CNFS averred that there were two vacancies and that Complainant was the only candidate interviewed and that, in the end, no selections were made. CNFS further averred that Complainant came to see him and was upset that she had not been selected and that he told Complainant “that the two Recreation Assistant Positions were going to be re-posted for an expanded area of consideration to potentially have a larger pool of qualified candidates and she would have the opportunity to apply again.” 2020004833 5 With regard to Claim 5, SRT averred that: As a new supervisor, I wanted to use the interview process allowing multiple candidates the opportunity to apply for the position. I think that is the fairest process since RT service is relatively small, and finding the best candidate is important. I informed HR that [Complainant] is encouraged to apply. SRT included an email that he sent to Human Resources, dated April 24, 2019, reiterating these same points. With regard to Claim 6, SRT averred that “No one was selected for this position. The panel members did not recommend any candidate for the position, neither did the candidates have enough clinical experience.” Finally, with regard to Claim 7, the Selecting Official (SO: Caucasian, no claimed disability) averred that Complainant’s application showed: No evidence of medical records usage, medical record scanning, CPRS use, or entering progress notes; no evidence of knowledge of medical terminology or medical office work; and no evidence of Health Information education. The Complainant indicated that they [sic] have work experience as a dietary worker. Tasks listed included "collect, gather and enter appropriate data into computer system; administrative/office work, working on personal computer in the diet office; excellent, up to date knowledge of computer skills, when using personal computer or software programs; followed approved procedures, cleaned and sanitized work areas, equipment, utensils and dishes; cross train staff members, and provide back-up when needed; ensures compliance with local SOPs, MCMs, OSHA and HACCP standards; and developed highly empathetic client relationships and earned reputation for delivering exceptional customer service. Based on this, the Complainant was not included in the highly qualified candidate pool and was not interviewed. SO further averred that: The selectee was chosen because she was the best candidate for the position as evidenced by her resume and her interview. She was the highest scoring candidate. The selectee has an Associate Degree of Applied Science in Medical Office Personnel from a local community college, as well as a Certificate in Medical Office Services and a Certificate in Advanced Medical Office from the local community college. In addition, she has worked in the medical records department at a local health care clinic for seven years and has specific work experience in that position uploading and scanning patient documentation into the electronic health record. She also learned medical terminology in college and used it at her position in the health care clinic. The Complainant did not provide any evidence of knowledge and/or skills directly related to this position. 2020004833 6 The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has failed to meet this burden. With regard to Claim 1, Complainant averred that on the day in question she had a sick child at home and that she was aware she was short of sick leave so when she returned to work she put in for four hours of Family Care and four hours of Annual Leave for the day she was off work. Complainant further averred that management told her that her request was denied “due to staffing” but that: We had plenty of people there that day, and had more workers come in at 10:45. I put in AL in lieu of [Family Care] for the second half of the day, that's usually when we have down time. Was denied. I feel this is due to them knowing if there was one more mess up on my part I would receive the admonishment - which I did June 2018 due to this situation. . . . [P]lenty of people here and several went home. If we were that short, why were people allowed to go home? While the parties contradict each other regarding whether or not the facility was short-staffed on the date in question, and hence whether management could have granted Complainant annual leave in lieu of sick leave, we note that since Complainant was not at work that day she has not explained how it is that she knows that the facility was not in fact short-staffed, as claimed by management. We find that Complainant has not shown that the Agency’s articulated reason for its action is a pretext to mask discrimination. We note in this regard that Complainant averred that: I feel my race was discriminated on because several people of other race can use annual leave in lieu of [sick leave] if needed to prevent an AWOL. . . .People of African American descent like the supervisors get treated differently. This happened because I am not a friend, family member, or favorite. When asked to identify otherwise similarly situated coworkers who were treated differently, Complainant was unable to do so. Instead Complainant averred that she believed that the real reason management charged her with being AWOL and declined to treat her annual leave as sick leave was in order to provide a subsequent justification to issue her an admonishment “next if I had a mess up.” Even assuming the truth of such a contention, that does not show that the Agency’s actions were based on Complainant’s protected bases. With regard to Claim 2, Complainant acknowledged that she received the formal counselling due to “[three] instances of calling in with days off” and further conceded that she did not disagree with the reason provided by management. 2020004833 7 When asked why she believed that the action was due to her protected bases, Complainant responded “I feel they know if I receive [sic] any more adverse instances, I could possibly be suspended, then fired.” Such a response does not establish that the Agency’s action was based on Complainant’s protected bases. With regard to Claim 3, Complainant averred that: I had written a memo as [CFNS] stated to do to have the admonishment removed if behavior has [sic] improved after six months. I gave [CFNS] the memo on Jan 18, 2019, I believe. He stated that if the admonishment was given for AWOLS he would be happy to remove it, if no other AWOLS have been given. He told me to give him ten minutes to investigate it. He called me back in his office within five minutes and stated it would be removed because I have done well and no AWOLS have been given. He congratulated me and shook my hand. I thanked him numerous times and explained I have really been working hard to improve and this is a weight lifted off my shoulders! On January 22, 2019, my name was sent to him for the recreation position the [first] time I applied, being the hiring official. When I came back to work after having some days off, he had sent an email on January 29, 2019, stating after further review he would be keeping the admonishment in my file. I KNOW this is because of my name coming over to him for referral. (emphasis in original) While Complainant maintains that CFNS told her that the admonishment would be removed as long as she incurred no additional AWOL charges, a review of the document itself states that the “admonishment will remain in your folder for 2 years, or it may be withdrawn and destroyed after 6 months, depending entirely on your future behavior and attitude.” The document does not state that its removal was contingent on Complainant incurring no additional AWOL charges. Even assuming CFNS misspoke when he initially issued the admonishment, the document itself placed Complainant on notice that taking care not to incur any additional AWOL charges was not necessarily enough. CFNS averred that the reason he declined to remove the document was because: The abuse of leave privileges that led to the two AWOL charges, resulting in the admonishment, had continued. . . . On or about January 18, 2019, the Complainant came to my office asking if I would consider the removal of the admonishment, indicating that she had no further AWOLs. I indicated that I would review the purpose of the disciplinary action and determine if it was in fact served. . . . [Following] the semiannual sick leave review from July 1, 2018 through December 31, 2018, [S] found that the Complainant's “absence from duty has had an adverse impact upon the operational efficiency of this service. Additionally, I consider your usage of leave to be an indication of sick leave abuse." I had not completely reviewed the Complainant's leave usage when we 2020004833 8 met on or about January 18, 2019. Based on the Complainant's statements when we spoke, I congratulated her and shook hands as she left my office. It was after this meeting that I found further evidence not to remove the admonishment. When asked why she felt the action was based on her protected bases Complainant responded that “disability played a role because [CFNS] was in charge of the selection process for the Recreation Assistant position. Because of my leave usage, he did3 [sic] remove the admonishment, and I was not selected for the Recreation Assistant position.” Such a response does not establish that the Agency’s action was based on Complainant’s protected bases. With regard to Claim 4, while Complainant acknowledged that no selections were made for the position, she averred that she felt when she was interviewed that: [I]t went perfect! I was familiar with all the panel, working at [the Agency] for 12 years! All very friendly, questions went smooth, and I felt very confident. I do believe they wanted me to join their team. . . . until it got back to [CFNS], I believe that's when it became an issue. Complainant further averred that when she learned of the nonselection she was mortified and she: Went in to speak to [CFNS] very distraught on why I did not get selected. He stated THEY -meaning the higher ups - wanted to broaden the spectrum. I then explained, there are two positions open. Why do they want to broaden the spectrum AFTER I was qualified, interviewed, and references were called? I said it took a month to decide they wanted to broaden the spectrum. I explained [to work colleagues] how upset, saddened and humiliated I was to hear the news. I explained to everyone it is a vendetta against me because I am not liked in my dept, and [CFNS] was the hiring official. I honestly feel this was a personal decision on his part, just so I could not get the job, (Emphasis in original) When asked why she believed that the action was based on her protected bases, Complainant responded: Race I feel played a role because MAJORITY of those able to transfer out to new jobs or promotions are African American. In mediation I said 90 percent, did not mean that just meant MAJORITY of those able to move on are of the African American decent [sic]. My disability is being used against me because everyone I talked to mentioned it was because of dependability. I take FMLA majority of the time when I am off. Rather it’s for myself, mother, or child. I get judged when I 3 We assume Complainant intended to say, “he did not remove.” 2020004833 9 use it and shouldn't be. That is a benefit I have and shouldn't be reprimanded for using it, if I stay within guidelines. (Emphasis in original) We note, however, that Complainant acknowledged that no selection was made for the position. Furthermore, Complainant did not specifically identify otherwise similarly situated coworkers outside of her protected based who were treated differently. A statement that “a majority” of transferees are outside of Complainant’s protected bases is too general to establish that discrimination occurred. With regard to Claim 5, Complainant averred that: I truly do believe I did not get transferred because of the horrible reference I got from [CFNS] and [S] for the Recreation Assistant position. [One Interview Panelist: (OIP1: Caucasian, no claimed disability)] called my references, one being [another supervisor] (AS, race, disability unspecified), but [CFNS] told [OIP1] that [AS] was not my direct supervisor, and had her call [S]. My interview went well. I scored a 24 out of 30, but [S] bad-mouthed me and gave me a horrible reference. [S] and [CFNS] know [SRT], and I believe they told [SRT] about the reference I was given for the position. I can't get mad at [SRT]. He went with who he knew. [He] knows [S] from his previous job. OIP1 agreed that CFNS recommend that she contact [S] because: One reference provided [by Complainant] was a family member, her mother, one reference was not a work-related reference, a fellow [Agency] employee who attended a training with the complainant, and one reference was not available due to extended leave and one was not an immediate supervisor of complainant. Therefore, I contacted [CFNS], who consulted with Human Resources. He was guided to reach out to her direct supervisor, as [Complainant] was a current employee. In her rebuttal statement Complainant averred that she did not know she should not have used her mother as a reference, nor did she know that her second reference was on extended leave and unavailable. Complainant, however, did not establish that the Agency’s articulated reason for its action was a pretext or that her nonselection was based on her protected bases. With regard to Claim 6, Complainant averred that she felt she did well in the interview and that her nonselection was based on her protected bases, but Complainant did not rebut the Agency’s contention that no selection was made for this position. With regard to Claim 7, when Complainant was asked why she believed her race, disability, and her prior EEO activity were factors in her nonselection, she averred “I don’t know. I wasn’t interviewed so I don’t know.” 2020004833 10 Complainant did not provide a rebuttal statement in response to SO’s affidavit attesting that “The selectee was chosen because she was the best candidate for the position as evidenced by her resume and her interview. She was the highest scoring candidate. . . . The Complainant did not provide any evidence of knowledge and/or skills directly related to this position.” We note that in a non-selection case, pretext may be found where the complainant's qualifications are plainly superior to the qualifications of the selectee. See Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). A review of the record does not show that Complainant’s qualifications were plainly superior. Instead the record shows that the top three candidates scored 50 or higher out of a possible total of 145 points while Complainant scored 15, placing her around the middle of the pack. Given the above, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to establish that the Agency’s articulated reasons were pretexts to mask discrimination or reprisal. Nor has Complainant shown that Agency officials, the majority of whom shared the same race as Complainant, harbored any discriminatory animus towards Complainant’s protected bases. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination occurred, and we AFFIM the FAD. 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). 2020004833 11 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. 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. 2020004833 12 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 March 9, 2021 Date Copy with citationCopy as parenthetical citation