[Redacted], Belia A., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 3, 2021Appeal No. 2020003417 (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 Belia A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003417 Hearing No. 470-2019-00303X Agency No. 200I-0596-2019101509 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 18, 2020, 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. ISSUE PRESENTED The issue is whether Complainant established that the Agency subjected her to discrimination or harassment in reprisal for her prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse (RN) at the Agency’s Home-Based Primary Care (HBPC) division at the Medical Center in Lexington, Kentucky. Complainant stated that on August 24, 2017, and April 11, 2018, she was “singled out” by her first-line supervisor (S1) to discuss her performance and care plans, months 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. 2020003417 2 before other staff members. Complainant stated that she was not aware that these meetings were “informal counselings.” Report of Investigation (ROI) at 49. On July 17, 2018, the Chief Nurse (CN) issued Complainant a Reassignment of Duties to Voluntary Service due to allegations of performance issues that were a safety concern to Complainant and veterans. ROI at 80. Complainant stated that as of January 16, 2019, she had not been returned to her regular assignment. ROI at 49. Complainant stated that on July 23, 2018, her second-line supervisor (S2) and CN denied her request for compensatory time due to inclement weather. Complainant stated that her detail assignment resulted in a four-hour daily commute and that NNU (National Nurses United) Section 14 provides that for an “unavoidable delay while on Government business,” an RN will be paid overtime unless compensatory time is requested in writing. ROI at 50. On October 18, 2018, CN issued Complainant a notice of a Proposed 3-Day Suspension for 18 specifications of Failure to Follow Procedures. ROI at 91-93. On October 25, 2018, a Human Resources Specialist (HRS) was informed that the evidence file for the proposed suspension was missing a copy of the aggravating/mitigating checklist and a copy of the table of penalties. Accordingly, HRS recommended that Complainant’s proposed suspension be pulled. ROI at 94. On December 18, 2018, an Acting Chief Nurse (ACN) issued Complainant a notice of a Proposed 3-Day Suspension for 12 specifications of Failure to Follow Procedures. HRS stated that this proposed suspension was rescinded because the program policy used was not within the timeframes of the specifications. ROI at 79. Complainant stated that on January 2, 2019, her name on the HBPC staffing sheet was replaced with “New Nurse.” ROI at 52. Complainant also stated that, as of January 16, 2019, she had not been returned to her position and no investigation was conducted into the “incident” from July 17, 2018, which was a specification cited in the proposed suspension. ROI at 49-51. On February 14, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment in reprisal for prior protected EEO activity (Agency Case No. 200I-0596-2017105288) when: 1. on April 24, 2017,2 and April 11, 2018, Complainant was “singled out” to attend private meetings with S1 to discuss her job performance and care plans, months before other staff; 2. on July 17, 2018, Complainant was issued a notice of detail assignment directing her to report to Volunteer Services; 2 We note that the Agency accepted this claim using the date of April 24, 2017, but the record contains evidence indicating that this meeting occurred on August 24, 2017, and the Agency used both dates throughout the investigation. 2020003417 3 3. on July 23, 2018, Complainant’s request for compensatory time was denied; 4. on October 18, 2018, Complainant was issued a proposed 3-day suspension; 5. on December 19, 2018, Complainant was issued a second proposed 3-day suspension; 6. on January 2, 2019, Complainant’s name on the HBPC staffing sheet was replaced with “New Nurse"; 7. as of January 16, 2019, the Agency had not yet conducted an investigation into the matters cited in the proposed suspensions (claims 4 and 5); and 8. as of January 16, 2019, Complainant had not been returned to her regular assignment. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that, for claims 2, 3, 4, 5, 7, and 8, management officials articulated legitimate, nondiscriminatory reasons for their actions, and it did not include a discussion of a prima facie case of discrimination based on reprisal for Complainant’s prior EEO activity. The Agency then found that Complainant did not present any evidence to suggest that management officials acted with retaliatory animus, or that the reasons given were pretextual. For example, the Agency noted that the processing of the proposed disciplinary action was riddled with errors and omissions, but to establish pretext, Complainant would have to show that the proposed action was unwarranted or egregiously out of step with standard practices, and that evidence of procedural error alone is not enough. Regarding Complainant’s claim of discriminatory animus based on her prior EEO activity, the Agency noted that Complainant stated that she had “emails, voicemails and documents,” but she did not submit any of the evidence she referenced in her affidavit, and she failed to identify any evidence to support her claim. The Agency determined that, overall, the record contained nothing to suggest retaliatory animus. The Agency then found that Complainant had not shown that the remaining incidents were motivated by discriminatory animus, nor sufficiently rose to the level of severe or pervasive behavior to establish a hostile work environment. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. On June 15, 2020, Complainant filed a Motion to Supplement to include two attached witness statements, which the Agency opposed on August 25, 2020. Complainant subsequently filed a Motion to Strike the Agency’s objection to the supplemental testimony, arguing that the Agency’s filing was untimely. 2020003417 4 CONTENTIONS ON APPEAL Complainant’s Contentions Through her legal representative, Complainant states that she established a prima facie case of discrimination in reprisal for her prior EEO complaint. Specifically, Complainant states that S1 and S2 attended the mediation for her prior EEO complaint, and that incidents 2-5, 7, and 8, which were materially adverse, occurred months after she withdrew her complaint. Complainant argues that the Agency failed to articulate legitimate, nondiscriminatory reasons for its actions. For example, Complainant argues that the Agency failed to provide a legitimate, nondiscriminatory reason for the denial of Complainant’s compensatory time. She maintains that its claim that there was no policy authorizing employees to receive compensation for excessive commute time due to weather failed to address why Complainant’s commute was distinguished from her detail work assignment, given that during the entirety of the detail, the Agency included her travel time as part of her detail. Complainant asserts that the unexplained change regarding Complainant’s commute to and from her duty location clearly shows the Agency’s lack of a legitimate, nondiscriminatory reason. Complainant further argues that the Agency’s reasons were pretexts for discrimination. Regarding incident 6, Complainant states that the Medical Support Assistant (MSA) who referred to Complainant as “New Nurse,” may not have known about her EEO activity, and wrote “New Nurse” because she believed that Complainant no longer worked at HBPC. Complainant requests that the Commission reverse the Agency’s final decision. Agency’s Contentions The Agency states that its final decision thoroughly and accurately detailed the relevant facts and applied the appropriate legal standards towards those facts. The Agency asserts that Complainant merely argued that she established a prima facie case and that the Agency’s reasons were “disjointed and vague,” without evidence of a nexus to her prior EEO activity. Regarding claim 3, Complainant challenged the assertion that there was no policy authorizing compensatory time for her commute. The Agency notes that Complainant’s regular assignment required that she drive during duty time between veterans’ homes, and that Complainant’s commute should not have been considered duty time during her detail assignment as she was not traveling amongst dispersed veterans and was reporting to a singular worksite. However, the Agency asserts that there was no retaliatory animus, and that this “windfall” of including Complainant’s commute time as part of her duty hours during her detail assignment does not undermine the Agency’s explanation that Complainant was not entitled to additional compensatory time for her commute during the detail assignment pursuant to Agency policy. 2020003417 5 The Agency argues that Complainant ignored relevant facts, such as identified performance issues prior to her EEO activity and a third-party complaint of significant deficiencies in Complainant’s practice. The Agency requests that the Commission affirm its final decision finding no discrimination. 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 (EEO MD-110), at Chap. 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 New Evidence on Appeal As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant filed a Motion to Supplement and submitted additional witness statements almost two months after she filed her appeal, but she has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. 2020003417 6 At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-16 (1983). A complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. See Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). While it is undisputed that Complainant engaged in prior EEO activity and that S1 and S2 were aware of her EEO complaint, there is no evidence that other Agency officials were aware of Complainant’s EEO complaint. CN and ACN both stated that they were not aware of Complainant’s prior EEO activity, which Complainant did not dispute. ROI at 64, 69. We also note that, on appeal, Complainant stated that MSA “may not be aware” of her prior EEO activity, and there is no evidence showing that MSA was aware. In addition, Complainant did not claim that incident 1 occurred within months of her withdrawal of her prior EEO complaint. Complainant has not shown a nexus between the private meetings and her protected activity. As such, we find that Complainant did not establish a prima facie case of reprisal for claims 1-2 and 4-8. Assuming, arguendo, that Complainant established a prima facie case of discrimination in reprisal for prior protected EEO activity for claim 3, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. S2 stated that Complainant’s request for compensatory time was denied because the reason for her request was inclement weather. ROI at 56. CN stated that she concurred with the decision to deny Complainant’s request for compensatory time. ROI at 66. On appeal, Complainant argued that the Agency failed to provide a legitimate, nondiscriminatory reason for the denial of Complainant’s compensatory time, and that its claim that there was no policy authorizing employees to receive compensation for excessive commute time due to weather failed to address why Complainant’s commute was distinguished from her detail work assignment, given that during the entirety of the detail, the Agency included her travel time as part of her detail. Complainant asserted that the unexplained change regarding her commute to and from her duty location clearly shows the Agency’s lack of a legitimate nondiscriminatory reason. However, we find that Complainant does not accurately describe the Agency’s legitimate, nondiscriminatory reason, and that S2 provided a legitimate nondiscriminatory reason when she stated that Complainant’s request for compensatory time was denied because it was due to inclement weather. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were 2020003417 7 confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant did not provide arguments regarding pretext for claim 3. However, to the extent that Complainant argued that the “unexplained change” regarding her commute to and from her duty location shows pretext for discrimination, we find that while the Agency included Complainant’s commute time as part of her duty time for her detail assignment, Complainant did not present evidence to show that she would be entitled to compensatory time for any extra time added to her commute due to inclement weather, or any other evidence to show that the management officials’ reasons were not worthy of belief. Accordingly, we find that Complainant did not show that the Agency discriminated against her in reprisal for her prior protected EEO activity when it denied her request for compensatory time on July 23, 2018. Harassment As discussed above, we found that Complainant did not establish a case of discrimination in reprisal for prior protected EEO activity. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by retaliation. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to harassment based on reprisal for prior protected EEO activity. 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 finding that Complainant did not establish that the Agency subjected her to discrimination or harassment in reprisal for her prior protected EEO activity. 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. 2020003417 8 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. 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. 2020003417 9 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