[Redacted], Brigette L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2021003210 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brigette L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003210 Hearing No. 460-2020-00154X Agency No. 2003-0580-2019103876 DECISION On May 12, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 14, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant, GS-7 at the Agency’s Veterans Affairs Medical Center (VAMC) in Houston, Texas. On September 9, 2019, Complainant filed the instant formal complaint alleging that the Agency subjected her to retaliatory harassment based on her engaging in protected EEO activity when: 1. On January 7, 2019, Complainant learned that the Health System Specialist, also Complainant’s supervisor (S1), told one of her colleagues that she wanted to remove Complainant from the Cardiology section. 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. 2021003210 2 2. On January 10, 2019, S1 failed to respond to Complainant’s request to meet with her. 3. In January 2019, S1 stated to Complainant, “Have you ever thought this might not be a good fit for you? You know how the VA is…You don’t have those issues anymore and you are capable of training new staff for the Cardiology Program Support Assistant (PSA) position,” after she told S1 that she was overwhelmed with work because she was performing the duties of two PSAs. 4. On February 6, 2019, S1 accused Complainant of not performing her duties, and then stated, “The problem is, you are not doing the work, I have huddle notes, I will send them to you.” 5. On April 17, 2019, S1 failed to take action, after the Complainant informed her that a coworker was falsely accusing her of not allowing an IT person to enter an office, to resolve a computer issue. 6. On May 16, 2019, S1 rated Complainant as “needs improvement” on her midyear performance appraisal, and issued Complainant a Notice of Significant Performance Deficiency, and a Notice of Performance Failure Accountability Act Warning. 7. On August 23, 2019, S1 issued Complainant a Final Notice of Significant Performance Failure. 8. Between June 13, 2019 and August 23, 2019, S1 temporarily removed Complainant from performing her original assigned job duties and required her to perform duties that were not part of her position description. 9. On August 30, 2019, S1 issued Complainant a memorandum notifying her that she was being relocated from Room 3C-300B to Room 3A-319.2 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the AJ issued a Notice of Proposed Summary Judgment on November 17, 2020. Neither party filed a response to the Notice of Proposed Summary Judgment. On April 9, 2021, the AJ issued a decision by summary judgment in favor of the Agency, finding no unlawful retaliation was established. In its April 14, 2021 final order, the Agency adopted the AJ’s decision. The instant appeal followed. 2 The record reflects that S1 left Agency employment in November 2019. 2021003210 3 ANALYSIS AND FINDINGS 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 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. To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. 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). In other words, to prove her harassment claim, 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 engagement in EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. During the investigation, Complainant alleged that she was being retaliated against because she pursued the EEO process in the instant complaint. The record shows that she first sought EEO counseling on May 31, 2019. 2021003210 4 This would be the earliest date that S1 could have been aware of Complainant engaging in protected activity. Complainant did state during the investigation that she told S1 on January 10, 2019, that she would be seeking union representation to pursue an allegation that she was being harassed, presumably because of the January 7, 2019 statement S1 is alleged to have made about removing Complainant from Cardiology. This statement was alleged to have been made before S1 officially became Complainant’s supervisor. According to S1, she asserted that she did not tell anyone that she wanted to remove Complainant from the Cardiology Section. She also noted that she did not receive a meeting request from Complainant or a union representative on January 10, 2019. S1 stated, however, she met with Complainant after she requested a meeting on February 4, 2019. The AJ noted that S1 asserted that she did not make comments to Complainant that working for the VA may not be a good fit for her or words to that effect. She explained that Complainant was not asked to train new staff because she was the only PSA assigned to the Cardiology Department at that time. S1 further stated that during a meeting on February 6, 2019, she explained to Complainant and her representative that she was not managing her time well, and that she began meeting with Complainant every morning to discuss priorities and it was an opportunity for Complainant to provide feedback. Moreover, S1 stated that she invited Complainant to provide specific areas where she needs assistance, but she did not respond so S1 offered the morning “huddle” notes to the representative. With respect to Complainant’s allegation that, on April 17, 2019, S1 failed to take action after the Complainant informed her that a coworker was falsely accusing her of not allowing an IT person to enter an office, to resolve a computer issue. S1 noted that a named physician informed her that Complainant denied access to an IT representative to his office to fix a computer problem. S1 informed Complainant that if she wished to file a complaint against the physician that she should complete a Report of Contact so her request would be documented, but she failed to provide a Report of Contact. The AJ further noted that, on May 16, 2019, S1 issued Complainant a Notice of Significant Performance Deficiency-Accountability Act Warning based on two or more instances of non- compliance of her critical and non-critical elements. The record contains an email from S1 to Complainant that she needed to improve in the following areas: improve the timeliness of responses, improve the timeliness of completing PATS, and reduce the number of administrative errors. Prior to this, the record contains numerous emails between S1 and Complainant concerning a wide variety of work issues, including notations of errors and directions for improvements. On August 23, 2019, S1 issued the Final Notice of Significant Performance Failure stating because Complainant failed to improve her performance over 90 days, her rating for fiscal year 2019 would be unsatisfactory. The record shows that Complainant’s performance elements provided numeric goals for number of errors, timeliness, etc. S1 indicates that Complainant failed to adequately meet some of these goals. 2021003210 5 As already noted, the record contains numerous emails between S1 and Complainant detailing a wide variety of work performance issues. S1 attested that the Labor Management Relations (LMR) Specialist reviewed and approved the Final Notice. Subsequently, S1 noted that because of Complainant’s performance failure, she was temporarily assigned other duties and she was unable to perform the duties of a Program Support Assistant. Regarding Complainant’s allegation that on August 30, 2019, S1 issued Complainant a memorandum notifying her that she was being relocated from Room 3C-300B to Room 3A-319. According to S1, she explained that Complainant was moved to another office at her request and due to her disruptive behavior as documented in a Report of Contact of August 29, 2019. The Deputy Executive stated that on October 15, 2019, he received an email from Complainant stated that she was being subjected to harassment. Thereafter, he worked with the Harassment Coordinator to put together a fact-finding team to investigate Complainant’s allegations. Following the investigation, the fact-finding team concluded their investigation and determined that allegations of workplace harassment could not be substantiated. The record evidence fully supports that AJ’s determination that Complainant failed to prove, by a preponderance of the evidence, that retaliatory animus for engaging in activity protected by Title VII played any role in the events at issue. Significantly, while the record shows that Complainant had a history of engaging in the union grievance process prior to all the events at issue here, there is no showing that claims of discrimination were raised in those grievances. During the investigation, Complainant specifically indicated that she believed she was being retaliated against for the instant EEO complaint. However, she did not initiate EEO counseling until May 31, 2019, which was after many of the events she claims were retaliatory. With regard to her August 2019 performance appraisal, we find that there was ample documentation that concerns about her work performance, including the May 2019 issuance of the mid-year review and notice of significant performance deficiencies, were made official prior to her EEO contact. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her claims that her treatment was the result of her protected activity. Here, the preponderance of the evidence does not establish that the Agency management involved were motivated by retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment finding no unlawful retaliation was established. 2021003210 6 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). 2021003210 7 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 September 27, 2021 Date