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

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2021003768 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brittney B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003768 Hearing No. 440-2020-00296X Agency No. 200J-636D-2020103017 DECISION On June 17, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 22, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 BACKGROUND On September 29, 2019, Complainant was hired as a part-time career-conditional Housekeeping Aide, Environmental Management Services (EMS), at the VA Central Iowa Health Care System (VACIHCS) in Des Moines, Iowa, subject to a one-year probationary period. Complainant’s direct supervisor was the EMS Housekeeping Aide Supervisor (“Supervisor”) and her second-line supervisor was the Assistant Chief Housekeeping Officer. 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. 2021003768 2 On May 11, 2020, Complainant filed a formal EEO complaint alleging that the Agency subjected to discrimination on disability and in reprisal for prior protected activity (unidentified) when: 1. She was subjected to a hostile work environment as evidenced by the following: a) Since September 2019, the Housekeeping Supervisor continually called, questioned, yelled at, physically intimidated, badgered, bullied, and isolated her, as well as made inappropriate personal requests; b) From November 2019 through January 2020, her work was sabotaged; and c) Since January 4, 2020, her harassment complaints to management were ignored. 2. From November 27, 2019 through March 2020, she was denied leave as a reasonable accommodation. 3. On March 6, 2020, her probationary employment with the Agency was terminated. After its investigation into the complaint, 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 Administrative Judge (AJ). Complainant requested a hearing. The Agency issued a Motion for Summary Judgment. Complainant filed a response to the Motion. The AJ subsequently issued a decision by summary judgment finding no discrimination or unlawful retaliation was established. The Agency issued its final order adopting the AJ’s summary judgment finding of no discrimination. The instant appeal followed. 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 2021003768 3 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 for Complainant. Harassment/Hostile Work Environment To prove her harassment/hostile work environment 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 race, sex or engagement in 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). Both the Supervisor and the Assistant Chief Housekeeping Officer denied Complainant’s allegation that they “continually called, questioned, yelled at, physically intimidated, badgered, bullied and isolated her as well as made inappropriate personal requests.” In addition, the Supervisor denied that Complainant’s work was sabotaged or that her harassment complaints to management were ignored. Complainant also claimed that the Supervisor bullied her by marking her as Absent Without Leave (“AWOL”) after instructing Complainant not to enter leave into the VATAS leave system. By email dated December 27, 2019, the Supervisor summarized her conversation with Complainant informing her she would not be granting Complainant’s leave request due to her failing to provide sufficient advance notice and because she was requesting Leave Without Pay (“LWOP”). Subsequently, Complainant emailed the Chief Housekeeping Officer and informed him that the Supervisor would not approve her leave request. She further wrote, ‘With the recent death of my stepdad and my close cousin [during] these holidays have me very down and I’m just not for the added stress. As I am taking off Sunday to be with family, I hope you are able to approve my day off not as a [AWOL].” The Chief Housekeeping Officer converted Complainant’s leave requests from AWOL to leave without pay. 2021003768 4 On January 4, 2020, Complainant informed the Supervisor she was down after her stepfather died. She told the Supervisor her family was “really down.” That day, the Supervisor provided Complainant a copy of the Leave of Absences from Duty policy in hard copy and by email. Regarding leave requests, on or about January 24, 2020, Complainant requested Family and Medical Leave Act (FMLA) leave from work from the Human Resources (HR) Specialist. The HR Specialist informed Complainant that she did not qualify for FMLA, but emailed Complainant forms for the Voluntary Leave Transfer Program (VLTP) for medical emergencies and Advanced Leave. Despite Complainant’s assertion that she was the victim of discriminatory harassment as delineated in our above discussion, and as set forth by Complainant in claims 1(a) - 1(c), we determine that the AJ properly found that failed to show that she had been “subjected to severe and pervasive treatment.” More importantly, beyond her bare assertions, there is simply no evidence to find that her race, sex or retaliatory animus played any role in the disputed events.3 Reasonable Accommodation: Denied Leave Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is an individual with a disability. A review of Complainant’s doctor’s letter states that Complainant had been under his professional care with a diagnosis of depression, has been incapacitated since January 25,2020, and could resume her regular work duties on March 9, 2020. The AJ determined, however, and the record so supports, that no Agency official had been aware of Complainant’s disability. The AJ expressly found that Complainant’s communications with Agency officials reflect no substantial impairment of a major life activity. The AJ found that, instead, Complainant informed an Agency official that her stepfather had died, her sister was depressed, and that [the family] was “all down and sad during this time.” The AJ also found that there was no reason to suspect that various leave requests Complainant had submitted had constituted requests for reasonable accommodation, and that some of the leave requests instead related to attendance at funerals, a wedding, and a Paris vacation. Based on the undisputed evidence of record, the AJ correctly determined that Agency management did not deny Complainant a requested reasonable accommodation or otherwise failed to accommodate Complainant. 3 The AJ further determined that Complainant had not shown that she had engaged in prior protected activity. If however, we were to determine arguendo that she had indeed engaged in prior protected activity, Complainant has not shown retaliatory animus played any role in the events at issue. 2021003768 5 Disparate Treatment: Termination During Probationary Period A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the termination of Complainant’s employment. Complainant stated that on February 26, 2020, she received a letter of termination, effective February 26, 2020. The Chief of EMS stated that he proposed terminating Complainant due to unacceptable attendance and being absent without approved leave (AWOL). Official time cards shown Complainant was absent without leave on the following dates in 2020: January 18, 2020 (8 hours), January 19, 2020 (1 hour), January 25, 2020 (8 hours), January 26, 2020 (8 hours), February 1, 2020 (8 hours), February 2, 2020 (8 hours), February 8, 2020 (8 hours), February 9, 2020 (8 hours), and February 15, 2020 (8 hours). The record further reflects that Complainant’s removal was effectuated on March 2, 2020. Based on the evidence of record, the AJ correctly determined that Complainant failed to prove, by a preponderance of the evidence, that this legitimate reason for her termination was a pretext masking any discriminatory or unlawful retaliatory motivation. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. 2021003768 6 CONCLUSION We AFFIRM the Agency’s final order adopting the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. 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. 2021003768 7 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. 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 17, 2022 Date