[Redacted], Annalee D., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 3, 2021Appeal No. 2020001388 (E.E.O.C. Aug. 3, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Annalee D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001388 Hearing Nos. 410-2017-00413X, 410-2017-00516X, 410-2018-00275X, 410-2019-00067X Agency Nos. 200I-0557-2016-102626, 200I-0557-2017100258, 200I-0557-2017104260, 200I-0557-2018103536 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 31, 2019 final order concerning her equal employment opportunity (EEO) complaints 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., 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Senior Social Worker, GS-0185-12, at the Agency’s Carl Vinson VA Medical Center in Dublin, Georgia. Complainant filed four EEO complaints in which, collectively, she alleged that the Agency discriminated against her on the bases of race (African-American), disability (physical), age (43), and in reprisal for prior protected EEO activity when: 1. on or about March 18, 2016, Complainant was not selected for the position of Social Worker Program Coordinator-Substance Abuse Treatment, GS-12, advertised under Vacancy Announcement Number OA-15JLH-1516258; 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. 2020001388 2 2. the Agency subjected Complainant to harassment when: a. on September 26, 2016, the Chief of Communication reported Complainant to the Chief of Social Work Service (CSW) and accused Complainant of having the van keys (van pool) and stranding Complainant with no way to get home, b. on October 6, 2017, CSW questioned Complainant regarding her mental health after receiving a complaint from a Patient Advocate (PA), c. since October 6, 2017, the PA continues to accuse Complainant of having anger and mental health issues, d. on February 14, 2017, Complainant was removed from riding in the employee van pool, e. on June 27, 2017, Complainant was assigned the additional duties of the Women Veteran Program Manager, and f. in May through June 2017, Complainant was denied the opportunity for promotion when on two separate occasions, she was not allowed to act as the Chief of Social Work; 3. in May through June 2017, Complainant was denied the opportunity for promotion when she was not allowed to act as the Chief of Social Work; 4. on July 12, 2017, Complainant was not selected for the position of Primary Care Mental Health Integration, GS-12, advertised under Vacancy Announcement Number OA-17-JLH-1919356-BU; 5. on July 17, 2017, Complainant was not selected for the position of Assistant Chief of Mental Health, GS-12, advertised under Vacancy Announcement No. OA-17- JLH-18880335; 6. on July 20, 2017, Complainant was not afforded an opportunity to apply for the HUD/VASH, GS-12 position, when another Social Worker was promoted to the position without having to apply; 7. on November 9, 2017, the Associate Nurse Executive (ANE) said she made a selection for an acting Chief of Social Work because the selectee was the only one who was not involved in a fact-finding or investigation; 8. on November 27, 2017, Complainant was denied the opportunity to act as Chief of Social Work; 9. on March 22, 2018, Complainant was not selected for the position of Supervisory Social Worker MHRRTP Program, GS-13, advertised under Vacancy announcement Number OA-18-JLH-2025116; 10. on March 22, 2018, Complainant was not selected for the position of Supervisory Social Worker Outpatient Mental Health, GS-13, advertised under Vacancy Announcement Number CBBM-10140438-18-JH; 11. the Agency subjected Complainant to harassment when: a. on February 23, 2018, and March 12, 2018, the ANE denied Complainant the opportunity to serve as acting Chief of Social Work, b. on April 3, 2018, the Acting Chief of Social Work issued a “Stay Away” letter to Complainant, and c. on May 24, 2018, the ANE and the Acting Chef of Social work disclosed Complainant’s identity to the person she reported for fraud and abuse. 2020001388 3 At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings. The complaints were subsequently consolidated. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a summary judgment decision. In her decision, the AJ rejected Complainant’s assertion that she was entitled to an adverse finding against the Agency because they denied her a fair opportunity to engage in discovery by inadequately responding to her discovery requests. The AJ rejected Complainant’s argument because she failed to file any motions to compel the Agency’s discovery within the schedule as identified in the AJ’s Order on Initial Conference, Deadlines, and Record Completion. The AJ further rejected Complainant’s contention that the Agency’s subsequent production of some information constituted a waiver because the Agency did so voluntarily and was under no obligation to do so. Next, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. For example, she was not selected for the position in claim (1) because the selectee performed better than her in the interview for the position. As a result, Complainant did not score as highly as the selectee. Complainant was not selected initially for the acting position because she was not eligible because she was not a supervisor. Later, Complainant was not selected for the acting position because the Agency declined to consider any employee who currently worked within the VA Southeast Network (VISN 7). As to claim (4), Complainant’s resume was not scored high enough for further consideration. Regarding the position in claim (5), a similar position was abolished and the employee who worked in that position was moved over into the position at issue in this claim. With respect to the position in claim (6), Complainant was not selected because she did not apply. Finally, as to the positions in claims (9) and (10), Complainant’s applications for these positions were not rated as highly as the resumes of the applicants who were interviewed. The AJ found that Complainant presented no evidence that the Agency’s reasons for her non-selections were pretextual. Finally, the AJ found that Complainant failed to show that the remaining incidents comprising her hostile work environment claim occurred as alleged. Further, there was no evidence demonstrating that the conduct at issue was based on discriminatory or retaliatory animus. Accordingly, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 2020001388 4 CONTENTIONS ON APPEAL On appeal, Complainant asserts that she misunderstood the AJ’s discovery deadlines to be calculated based on business days and not calendar days, and that she was engaging in good faith efforts to secure the Agency’s compliance. Complainant objects that the “AJ denied Complainant’s motion to compel as untimely but he provided absolutely no guidance on the issue of the Agency’s failure to submit discovery.” Beyond discovery issues, Complainant argues the AJ’s decision improperly granted summary judgment to the Agency. ANALYSIS AND FINDINGS As an initial matter, we will address Complainant’s contentions regarding the manner in which the AJ conducted the hearing phase. We note that AJs have full responsibility for the adjudication of the complaint, including overseeing the development of the record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a)(e). Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016) citing Kenyatta S v. Dep't of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). The Commission has reviewed the record and finds no abuse of discretion by the AJ. Further, the Commission is unable to find any evidence of bias, or other reversible error, resulting from the manner in which the AJ managed this case. 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 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 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 discriminatory or 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 fact-finder could not find in Complainant’s favor. 2020001388 5 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 or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting 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 (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. 2020001388 6 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 August 3, 2021 Date Copy with citationCopy as parenthetical citation