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

Equal Employment Opportunity Commission

Feb 23, 2022

Appeal No. 2021001583 (E.E.O.C. Feb. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernetta B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001583 Hearing No. 480-2018-00296X Agency No. 200P-0600-2017101196 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 December 28, 2020, final order 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. During the relevant time, Complainant worked as a Staff Nurse, Nurse 2/Step 9, at the Agency’s Long Beach Veterans Affairs Medical Center in Long Beach, California. On April 3, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and reprisal for prior protected EEO activity when: 1. On September 14, 2016, Complainant was “written up” by her first-level supervisor (S1); 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 2021005183 2. On November 23, 2016, S1 rated Complainant (in an evaluation) as not having met standards in three areas despite her having made marked improvements in those areas; 3. On December 2, 2016, Complainant’s second-level supervisor (S2) temporarily detailed Complainant to Ward North 4 effective December 7, 2016, pending an administrative investigation; 4. On December 6, 2017, S1 instructed Complainant to report for a meeting in S2’s office without the benefit of union representation. At the meeting, S2 told Complainant that she was being investigated for allegations of contributing to an unhealthy work environment; and 5. On January 4, 2017, S2 continued Complainant’s temporary detail of December 2, 2016, “until further notice.” After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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). 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 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. 3 2021005183 Based on the evidence developed during the investigation of the complaint, the AJ found that Complainant did not present direct evidence that any of the incidents were motivated by discriminatory or retaliatory animus. The AJ further found that Complainant failed to present evidence of any remarks or statements that would lead to an inference of discrimination or retaliation. Complainant also failed to demonstrate that the Agency’s articulated legitimate and non-discriminatory reasons were pretext for discriminatory animus. The AJ reviewed the evidence of the alleged events and found that Complainant did not provide any specific comparators. In each of the claims, Complainant asserted that others were treated differently or better than she was, but she never provided a specific comparator for any of the claims. The AJ found that Complainant’s assertions in claim 1, that Complainant’s behavior was racially specific and that the discipline issued by S1 (race - Indian) was racially and retaliatorily motivated, were far too speculative to create an inference of discrimination for a trier of fact. In claim 2, Complainant points to evidence demonstrating improvements of the department, as opposed to her own demonstrable improvements. Complainant does not provide evidence that S1 rating Complainant “satisfactory” was motivated by discriminatory or retaliatory animus. The AJ also found that Complainant failed to provide any evidence that claims 3 and 5, the reassignment to a detail and extension of the detail, were motivated by anything other than the reasons given by S2 (race not identified in record). S2 informed Complainant that, pending an administrative investigation against Complainant for her role in creating an unhealthy and hostile work environment, she was being reassigned. Finally, the AJ found again that there was no evidence presented of any discriminatory or retaliatory motivation. Regarding the claim of harassment, the AJ found, and the record supports, that Complainant provided no evidence that any of the subject incidents were motivated by discriminatory or retaliatory animus. We note, for example, that the AJ found that while Complainant claimed that African -American nurses were given harder tasks, and assigned to weekends, the record was devoid of evidence reflecting unequal nursing assignments. Similarly, the AJ found that Complainant presented no evidence of any remarks or statements which reflect the Agency having discriminatory animus against Complainant motivated by her raised bases. 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 against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 4 2021005183 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. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 5 2021005183 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 February 23, 2022 Date