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

Equal Employment Opportunity Commission

Oct 28, 2021

Appeal No. 2020003804 (E.E.O.C. Oct. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Amina W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003804 Hearing No. 200I-0673-2017900089 Agency No. 200l-0673-201790089 DECISION On June 18, 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 May 20, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Program Support Assistant, GS-6, in Nursing Spinal Cord Injury (SCI) Rehabilitation Clinic in Veterans Hospital in Tampa, Florida. At that time, Complainant’s direct supervisor was a nurse who was an African American female, age 47 (First Nurse); Complainant’s second-line supervisor was the Chief Nurse of SCI Rehabilitation (SCI Nurse) who was a Caucasian, female, age 52; and Complainant’s third-level 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 2020003804 supervisor was the Acting Chief Nurse Executive (Acting Nurse Exec) who was a Caucasian, male, age 53. On September 26, 2017, Complainant contacted an EEO Counselor. The parties were unable to resolve the matter through informal counseling. On December 1, 2017, Complainant filed a formal EEO complaint alleging the Agency discriminated against her based race (African American), sex (female), disabilities (cleft palate, right thumb, right knee, PTSD), age (63), and in reprisal for prior protected activity when: 1) On August 15, 2017, SCI Nurse, asked Complainant to “use her leverage in the Hospital Director’s office” to get the Hospital Director to sign several documents. 2) On August 31, 2017, after Complainant indicated she knew an Agency employee (male, African-American) who moved furniture, SCI Nurse stated: “I need you to show [him] some leg because I need some chairs” and “I don’t mind pimping you out.” 3) On October 5, 2017, SCI Rehab Nurse informed Complainant that she wanted to prioritize Complainant’s work “because it needed improvement,” and started holding Complainant to a different standard from her white co-workers. 4) On October 12, 2017, SCI Rehab Nurse removed Complainant’s ability to access Chief Nurse’s calendar without telling her in advance. 5) During a meeting held on October 30, 2017, Acting Nurse Exec suggested that Complainant was at fault for not telling SCI Nurse “to stop” when SCI Nurse made the comments regarding “showing her leg” and “pimping her out.” 6) On dates not specified, when Complainant has joined in discussions about retirement, children, life experiences, etc., she has received comments such as, “I can’t believe you are that old,” and “You don’t look that old.” 7) On dates not specified, SCI Nurse has referenced Complainant’s “very soft, high-pitched voice” by telling her to “speak up more often.” After an investigation, the Agency provided Complainant a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 23, 2019, the AJ held an initial conference. 3 2020003804 On December 6, 2019, the Agency moved for summary judgement. Complainant filed a response in opposition. The AJ initially denied the Agency’s motion but granted the Agency leave to refile. On January 29, 2020, the Agency filed an amended summary judgment motion. Over Complainant’s objections to the Agency’s, the AJ granted the Agency’s amended motion. On May 14, 2020, the AJ issued a decision by summary judgment finding the in the Agency’s favor. On May 20, 2020, the AJ issued a final order adopting the AJ’s decision. The instant appeal followed. On appeal, Complainant contended that Agency actions following EEO counselor contact on September 26, 2017, constituted reprisal. Complainant clarified that she was asserting that Acting Nurse Exec learned of Complainant’s EEO activity on October 30, 2017. The following day, on October 31, 2017, Acting Nurse Exec asked Complainant to sight a verbally counselling memo regarding how to cease inappropriate conversations. Complainant accused the AJ of bias against her by giving the Agency instructions for amending a summary judgement motion. Complainant stated the AJ erroneously ignored the sworn statement from First Nurse evidencing that SCI Nurse habitually made abusive comments and never apologized. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. See Fed. R. Civ. P. 56. Summary judgment is appropriate where an AJ determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on summary judgment, the AJ is to determine whether there are genuine issues for a hearing, as opposed to weighing evidence. Id. at 249. At the summary judgment stage, the AJ must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable AJ could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);see also Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully examined the record and find it adequate. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not introduced new material evidence or identified disputed material facts in this record. As an initial matter, 29 C.F.R. § 1614.109 gives EEOC administrative judges extremely broad deference as to how they manage administrative hearings. For reversible AJ error, a very “high bar” has been set. Complainant must prove an abuse of discretion that prejudiced the outcome of her case. Despite Complainant’s appellate argument regarding the actions of the AJ in corresponding with Agency officials, we discern no impropriety and determine that this AJ’s conduct fell within the broad discretion allowed. 4 2020003804 We now turn to the merits of Complainant’s claims. To prove her discriminatory harassment claims, 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 a protected basis - in this case, her race, sex, age, disability or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding Claim 1, the AJ found SCI Nurse’s “use your leverage” comment was proper and business related during their discussion about seeking the Hospital Director’s signature on matters concerning the SCI Rehabilitation Clinic. We concur. Regarding Claim 2, the AJ determined that SCI Nurse telling Complainant to “show some leg,” and then admitting “I don’t mind pimping you out,” were inappropriate but did not amount to a violation of Title VII. We agree with the AJ’s conclusion that SCI Nurse’s off-hand comment to Complainant on this single occasion was insufficiently severe and did not interfere with the work environment. As such, the comments, without more, were not sufficient to violate Title VII. Regarding Claim 5, we also concur with the AJ’s reasoning that Acting Nurse Exec had no discriminatory intent when she verbally counseled Complainant on appropriate and inappropriate conversations. That being said, we note that the comments made by SCI Nurse were unprofessional and condescending, and management’s response could have been more supportive of Complainant’s concerns. We remind this Agency of its obligation to control managers and supervisors in manner that ensures continuing “affirmative application and vigorous enforcement” of EEO policy in accordance with 29 C.F.R. §1614.102(5). Regarding Claim 3, the AJ deduced that the SCI Nurse was legitimately giving Complainant performance feedback prioritizing work assignments. We concur. Regarding Claim 4, the AJ determined SCI Nurse preventing Complainant from accessing SCI Nurse’s calendar amounted to a normal workplace tribulation as opposed to discriminatory harassment. We again concur. Regarding Claim 6, we agree with the AJ in that the record did not support Complainant’s allegation of age-based discrimination. Regarding Claim 7, witnesses had described Complainant’s voice as “high-pitched” or “very soft. As a result, the AJ found that, whenever Complainant was told to “speak up,” it amounted to an ordinary occurrence in the workplace and not pervasive mistreatment that was required to create a hostile work environment. Moreover, there is little evidence to tie this matter to Complainant’s protected statuses. 5 2020003804 In sum, the weight of the evidence fully supports the AJ’s determination that the disputed actions were not, in any way, motivated by discriminatory or retaliatory animus. Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, sex, disability, age or prior EEO activity. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were unlawfully motivated. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment, finding no discrimination or unlawful retaliation was established. 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit her request for reconsideration, and any brief in support of her request, via the EEOC Public Portal, found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit 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, Complainant’s request to reconsider shall be deemed timely filed if OFO receives it within five days of the expiration of the applicable filing period. 29 C.F.R. § 1614.604. 6 2020003804 The Agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). Either party’s request 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 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. 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 October 28, 2021 Date