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

Equal Employment Opportunity Commission

Feb 16, 2022

Appeal Nos. 2022000259, 2022000260 (E.E.O.C. Feb. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Callie B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal Nos. 2022000259, 2022000260 Hearing Nos. 450-2019-00245X, 450-2020-00027X Agency Nos. 2003-0549-2018103502, 2003-0549-2019102652 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 20, 2021 final order concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Addiction Therapist, GS-9, at the Sam Rayburn Veterans Affairs Medical Center Domiciliary in Bonham, Texas. On July 23, 2018, Complainant filed her complaint, Agency No. 2003-0549-2018103502, which was amended, alleging discrimination and a hostile work environment based on race (Black) and in reprisal for prior EEO activity when: 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. 2022000259 2 1. On January 12, 2018, her first and second level supervisors (S1 and S2) failed to take corrective action when she expressed concern about a “racially oppressive picture.” 2. On January 18, 2018, S2 allowed coworker (CW1), to take down signs that she posted in the break room. 3. On February 20, 2018, S1 verbally counseled her and placed her on a 30-day plan. 4. On March 12, 20, and 21, 2018, S1 repeatedly discussed previously resolved issues of patient passes and unchanged notes in a patient's record. 5. On March 27, 2018, S1 verbally counseled her for wearing jeans on a non-Friday. 6. On March 29, 2018, S2 refused to communicate the specifics of a veteran's concerns about her. 7. On April 2, 2018, S2 verbally counseled her for working late to process a bus pass for a veteran and for inappropriately discussing hormone replacement therapy with a veteran. 8. As of April 9, 2018, S1 denied her structured training on the “VA Method.” 9. On April 9, 2018, S2 verbally counseled her for inappropriate interactions with a veteran. 10. On April 18, 2018, S1 assigned a patient to her caseload from another coworker. 11. On May 1, 2018, S1 issued her written counseling, which she refused to sign. 12. On May 9, 2018, the Assistant Director, Outpatient Services issued her a Letter of Reprimand. 13. In August 2018, S1 and S2 refused to check facility video tapes, which would have shown the false accusations against her. 14. On August 7, 2018, S2 denied her tuition reimbursement benefit. 15. On or about August 22, 2018, S1 verbally counseled her for assisting a client. 16. On August 23, 2018, S1 failed to take appropriate corrective action when she reported CW2 "butted" into a conversation between her and her client. 17. On September 18, 2018, S1 and S2 failed to respond when she complained that a coworker made an offensive remark to her, "You look like you are up to no good." 18. On November 1, 2018, S1 and S2 failed to respond when she complained that a veteran cussed and called her names during a group meeting. 19. In June 2018, S2 failed to address CW2 making derogatory comments about her; specifically, none of the staff liked her, stay away from her, she was trouble, and get off her caseload when speaking to the admitted veterans. 20. On October 4, 2018, the Supervisory Rehabilitation Technician and S2 failed to address that CW2 rudely disrespected her by interrupting her conversation with a veteran. 21. On November 1, 2018, the Supervisory Rehabilitation Technician failed to address that CW2 refused to buzz her into the front locked double-doors, and later that day, "copped an attitude" at her, when responding to her question, why are you reading the patient's papers and snapped, "that's my job", as she threw the papers down on the desk. 22. On October 1, 2018, S1 falsely accused her of accepting gifts from a veteran. 23. On November 20, 2018, S1 and S2 requested she respond to questions from a Human Resources Officer about the harassing incidents, which she had reported. 24. On a date unspecified, S1 "excluded" her from the team luncheon. 25. On April 24, 2018, S1 falsely stated that CW3 was responsible for tracking her veteran's and all Addiction Therapist’s progress in admissions. 2022000259 3 26. On May 21, 2018, S1 and S2 urgently and secretly questioned the participants of her Women's Group. 27. On May 22, 2018, a veteran told her that S1 attempted to get him to say that she was inappropriate with him and a female veteran. 28. On August 31, 2018, S1 falsely accused her of having animosity and that her complaints against the other employees are erroneous and defaming, as told to her by a Human Resource Specialist. 29. On November 8, 2018, S1 and S2 failed to acknowledge or congratulate her on receipt of her Master’s degree in Marriage and Family Therapy but acknowledged other employees for their completion of trainings. 30. On November 13, 2018, S2 accused her of trying to discover what kind of discipline CW2 received for her complaints against CW2. 31. On January 7, 2019, S2 temporarily reassigned her from an Addiction Therapist GS- 0101-09 in Bonham, TX to a Program Support Assistant GS-0344-06 in Dallas, TX pending the results of an investigation into misconduct. 32. On January 4, 2019, CW1 reversed her approved leave and entered 24 hours of Leave Without Pay (LWOP) to her timecard without her knowledge. 33. On January 18, 2019, S1 required her to participate in a fact-finding meeting for alleged misconduct and accused her of leave abuse during the meeting. 34. On January 28 and 29, 2019, S1 harassed her concerning leave requests to an identified supervisor. 35. On February 11, 2019, she became aware that S1 charged her Absence Without Official Leave (AWOL) for December 17, 2018. 36. On March 13, 2019, S1 falsely entered a request and approved 4 hours of sick leave and 4 hours of annual leave for December 17, 2018, and 3 hours of administrative leave, and 5 hours of LWOP for December 27, 2018, in her VATAS (Agency’s web-based time and attendance system) account. On April 29, 2019, Complainant filed her complaint, Agency No. 2003-0549-2019102652, alleging that she was subjected to a hostile work environment in reprisal for her prior EEO activity when: 37. On March 22, 2019, S2 intentionally failed to take appropriate care when her proposal to suspend package was given to a Medical Clerk, who mailed the package to the wrong address, and later the package was left opened at her door. 38. On April 22, 2019, S2 rescinded the proposed suspension dated March 22, 2019, and reissued a proposal to suspend her for 10 days without pay for the same charges as in the previous proposal with revisions to certain sections after she had submitted her rebuttal to the previous proposal to suspend. 39. On May 10, 2019, S1 failed to provide her the contents of her former office. 2022000259 4 40. As of June 5, 2019, the Assistant Director, Outpatient Services refused her two requests to email his decision regarding her response to S2’s proposal to suspend her 10 days without pay.2 41. On May 13, 2019, she felt forced to transfer from Bonham as an Addiction Therapist due to the harassment by S1, S2, the Assistant Director Outpatient Services, and a Human Resources Specialist. 42. On July 15, 2019, S2 instant messaged her requesting that she pick up her belongings from the Bonham VA Medical Center at her own expense after failing to provide her her belongings previously on three different occasions, and S2 also refused to make arrangements to put her belongings on a bus from the Bonham VA Medical Center to the Dallas VA Medical Center. 43. On August 7, 2019, the Assistant Director, Outpatient Services refused to provide her an inventory list of the contents in her Bonham office packed without her being present. Complainant does not challenge the framing of the claims. After its investigation into the complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ, consolidating Complainant’s hearing requests, subsequently issued a decision by summary judgment in favor of the Agency. Regarding Complainant’s claim of disparate treatment, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ stated that regarding claim 8, there was no structured training class as “VA Method.” Regarding claim 11, Complainant and her coworker received a written counseling for their argument concerning a veteran patient. Regarding claim 12, Complainant was issued a Letter of Reprimand for her inappropriate conduct and failure to follow procedure. Specifically, Complainant told a veteran that he should consider hormone replacement shots to become a woman; she called a male veteran by a female name; and she worked outside of her tour of duty. Regarding claim 14, Complainant failed to submit her completed SF182 form as requested. Regarding claims 32, 35, and 36, Complainant was charged LWOP and AWOL because she failed to appear after her approved official time, after her doctor’s appointment was canceled, and she failed to timely input her leave request. The AJ further found that Complainant failed to show that she was treated differently than other similarly situated employees regarding the Agency’s actions. Regarding her claim of harassment, considering all the events, the AJ found that Complainant failed to show that it was related to any protected basis of discrimination. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 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., 2 Complainant subsequently withdrew this claim. 2022000259 5 846 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 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. 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. CONCLUSION 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). 2022000259 6 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. 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. 2022000259 7 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 16, 2022 Date